Tyrone King # 114309 v. Warden
MEMORANDUM OF DECISION
The principal issue in this habeas action is whether trial counsel of the petitioner, Tyrone King, was ineffective in failing to meaningfully explain the state's plea offers and the risks of going to trial, and if so, whether the petitioner was prejudiced. For the reasons that follow, the court finds that issue for the petitioner.
The petitioner was convicted, after a jury trial, of one count of sale of narcotics in violation of General Statutes § 21a–277(a) and one count of sale of narcotics within 1500 feet of a school in violation of General Statutes § 21a–278a(b). The petitioner was acquitted of one count of illegal sale of narcotics by a non-drug-dependent person in violation of General Statutes § 21a–278(b). On January 31, 2005, the petitioner was sentenced to thirteen years incarceration followed by five years special parole to run consecutively to the sentence the petitioner was serving on a parole violation.
The petitioner did not take a timely appeal of his conviction. On December 27, 2006, the petitioner filed a petition for writ of habeas corpus in which he claimed that his trial counsel, assistant public defender Heather Abel, was ineffective in failing to preserve his right to appeal his conviction. On April 19, 2006, the habeas court granted the petition and ordered the petitioner's right to appeal from his conviction restored. King v. Warden, Docket No. CV 06–4000887, Judicial District of Tolland. The petitioner then appealed his conviction, and on November 18, 2008, the Connecticut Supreme Court affirmed the judgment of conviction. State v. King, 289 Conn. 496, 958 A.2d 731 (2008).
On January 7, 2009, the petitioner filed this petition for writ of habeas corpus in which he alleges that trial counsel was ineffective in failing to adequately advise him regarding the state's plea offer of three and one-half years, which was to run concurrent to the sentence he was serving on parole violations. He also claims trial counsel was ineffective with respect to certain aspects of her conduct at trial. The petitioner filed a pre-trial brief on September 6, 2011. The court heard evidence on September 14 and 15, 2011. The parties filed post-trial briefs on October 4 and 11, 2011.1
FINDINGS OF FACT
The Connecticut Supreme Court set forth the facts underlying the petitioner's convictions as follows:
On the night of June 28, 2004, the tactical narcotics team (team) of the Bridgeport police department initiated a narcotics investigation in the area of Washington Avenue and Sanford Place in Bridgeport. The team targeted the area for investigation because it was considered a “high drug area” in which narcotics officers previously had made numerous drug related arrests. Clive Higgins, an undercover officer assigned to the team, testified that his role in the investigation was to purchase drugs. Higgins was equipped with a listening device that enabled other team members to monitor his activity.
At approximately 10 p.m., Higgins approached the defendant, who was located on the corner of Washington Avenue and Sanford Place, and asked where he could “get some ․ slabs.” Higgins explained to the jury that a slab is a “ziplocked [bag] containing narcotics or cocaine.” The defendant then told Higgins, “I'll take you to my man,” and asked Higgins how many slabs he wanted. After Higgins requested two slabs, he accompanied the defendant to a building located at 40 Sanford Place.
William Reilly, the officer who was assigned to watch Higgins and to monitor his conversations by way of the listening device, saw Higgins and the defendant enter the building and he heard “footsteps going up stairs.” Higgins and the defendant proceeded to the fourth floor of the building, where the defendant knocked on the only door without an apartment number. When the occupant of the apartment opened the door, the defendant instructed Higgins to give the defendant money. Higgins handed the defendant a marked $20 bill, after which the defendant entered the apartment alone and closed the door. While the defendant was in the apartment, Higgins used the listening device to transmit information about his location to other officers on the team. A few seconds later, the defendant exited the apartment and handed Higgins two clear ziplock bags containing a white substance. Reilly saw Higgins and the defendant leave 40 Sanford Place together, and Higgins then signaled to Reilly that he was in possession of drugs.
Orlando Rosado, another officer on the team, subsequently arrested the defendant, and he retrieved a crack pipe from the defendant when the defendant was brought to police headquarters. The white substance that the defendant handed to Higgins proved to be 0.143 grams of crack cocaine.
State v. King, supra, 289 Conn. 499–501.
The court makes the following findings of fact. The defendant was initially charged in a short-form information with (1) conspiracy to commit sale of certain illegal drugs in violation of General Statutes §§ 53a–48 and 21a–278(b); (2) conspiracy to commit sale of controlled substances within 1500 feet of a school in violation of §§ 53a–48 and 21a–278a(b); and (3) use of drug paraphernalia in violation of General Statutes § 21a–267(a). He pleaded not guilty to those charges on September 14, 2004 and elected a trial by jury.
When the petitioner was arrested, he was on parole, having received a sentence of six years, 365 days imposed in 2000. As a result of the new arrest in this case, the petitioner violated his parole, and was returned to prison on the prior convictions to complete that sentence. Thus, while awaiting trial in this case, the petitioner was a sentenced prisoner and was not receiving jail credit toward any sentence he might receive in this case.
Abel was appointed to represent the petitioner after his arraignment on June 29, 2004. Abel knew that the petitioner was a sentenced prisoner, having been on parole when he was arrested. She recalled receiving the file, getting the police report and other documents, and conducting an investigation by going to the scene of the petitioner's arrest. The petitioner told Abel that he did not sell the drugs to the undercover police officer but was drug dependent at the time of his arrest and brought the police officer to the seller in exchange for cocaine to support his drug habit.
Although she recalled that she met with the petitioner a number of times in the lock up at the Bridgeport courthouse, she did not recall the substance of those meetings. Abel did not make any notations as to when or where she met with the petitioner nor did she take any contemporaneous notes or prepare file memoranda of what occurred or what was discussed during meetings with the petitioner.
On August 31, 2004, the state offered the petitioner a plea of four years concurrent to the sentence he was then serving. The petitioner did not recall that Abel conveyed this offer to him. Abel had no recollection of whether she relayed this offer to the petitioner or whether she discussed it with him. The best Abel could say was that it was her general practice to convey plea offers to her clients, inform them of their ultimate exposure on the charges, and explain the benefits and risks of going to trial.
On October 29, 2004, the petitioner filed a pro se motion for a speedy trial. On November 8, 2004, Abel filed a motion for a speedy trial on the petitioner's behalf. Also, on November 8, 2004, the state filed an amended long-form information charging the petitioner with: (1) count one, sale of narcotics by a person who is not drug-dependent in violation of § 21a–278(b); (2) count two, sale of narcotics in violation of § 21a–277(a); and (3) count three, sale of narcotics within 1500 feet of a school in violation of § 21a–278a(b).2 All three counts of the amended information alleged that the petitioner, as principal, “sold, dispensed or gave a certain narcotic substance, to wit: crack cocaine, to Undercover Police Office ․” The state's theory of the case was that the petitioner sold narcotics or facilitated a sale of narcotics to an undercover police officer in what is commonly referred to as a “buy and bust” operation.
On November 17, 2004, the trial court denied the petitioner's pro se motion but granted Abel's motion for a speedy trial, and ordered that jury selection commence on December 6, 2004.
Prior to jury selection, the state made a second plea offer to the petitioner of three and one-half (3 1/2) years concurrent to the sentence the petitioner was then serving. Abel notified the petitioner of the state's offer of 3 1/2 years. Although Abel believed she explained and discussed the plea offer with the petitioner, she did not recall doing so.
Abel informed the petitioner of this plea offer. She told him that in order to pursue his defense that he did not “sell” the drugs to the undercover officer, he would probably have to testify. If he testified, he would be impeached with his prior criminal record and the jury would likely believe the police officer's testimony and not the petitioner's. However, Abel did not explain that (1) the drug dependency defense was only a defense to the charge of sale by a non-drug dependent person under § 21a–278(b); (2) he could accept the plea offer under the Alford 3 doctrine without admitting the facts, or (3) he could be found guilty as an accessory, even though he was charged as a principal. As to the accessory issue, Abel did not understand accessory liability to be an issue in the case or that the state would proceed under a theory of accessory liability. Had the petitioner known this information, including his maximum exposure would be 23 rather than 18 years consecutive as discussed below, such knowledge would have changed his decision to go to trial and he would have accepted the state's plea offer of 3 1/2 years concurrent to the sentence he was already serving.
Prior to trial, Abel had the petitioner sign a written document entitled “notification of plea bargain.” It was Abel's practice to prepare this document herself and have her clients sign such a document prior to going to trial, after a plea offer was rejected. The notification in the petitioner's case was dated December 1, 2004, and signed by the petitioner and Abel. It provided as follows:
I, Tryon [sic] King hereby acknowledge that my attorney has informed me that the last plea bargain offer by the State Attorney's office is 3 1/2 years concurrent to the sentence I am now serving on the charge of Sale of Narcotics.
I also understand if I am convicted on the all the [sic] charges the state has filed that my maximum exposure would be 15 years and 8 of those years are mandatory minimum sentences.
I am aware of all of these facts and wish to assert my right to a jury trial.
(Italics emphasis added.)
The notification contained erroneous information and omitted important information. The notification incorrectly stated the petitioner's maximum exposure as “15 years and 8 of those years are mandatory minimum sentences.” It is undisputed that under the amended information, dated November 8, 2004, the petitioner's maximum exposure was twenty-three (23) years—eight (8) more years than Abel told the petitioner.4 In addition, Abel did not specify in the notification that the maximum sentence, or whatever sentence was received, could be made to run consecutive to the sentence the petitioner was then serving.5
The case proceeded to trial. During jury selection, the state made a third offer to the petitioner. The state's offer was written on a blank piece of paper that the state handed to Abel in the courtroom when the parties were each seated at counsel table while in the process of picking the jury. The note suggested four possible plea options: “(1) 3 1/2 or (2) 3, 3 Sp Parole or (3) 2 1/2, 5 Sp. Parole or (4) 2 yr, 1 day, 7 sp p. Based on this guy's record it's more than fair. Offer gone when next juror picked.”
Although Abel believes that she discussed this third series of offers with the petitioner in a room in the courthouse, she does not recall doing so. The petitioner recalled that Abel slid the prosecutor's handwritten offers to him during jury selection, but that he and Abel did not discuss them.
Abel tried to persuade the defendant to accept one of the various plea offers because she believed that the state had a strong case, due to the petitioner's facilitation of the drug sale and his criminal history, which could be introduced into evidence if the petitioner testified at trial. Abel also believed that there was a strong possibility that the jury would believe the police officer.
It was Abel's general view that if a client wants a trial, she would try the case. Although she generally tells her clients candidly what she thinks of a case and what she would do in a case, she did not “brow beat” them or “twist their arms” to accept the plea. Rather, she would simply give her clients the information and let them decide whether to plea or go to trial. She recalled that the petitioner did not want to plead to a sale charge because he believed he was not selling drugs at the time.
The case proceeded to trial and the defendant testified in his own defense.6 The defense strategy was to show that the petitioner was drug dependent at the time of his arrest, and that the petitioner did not intend to and did not sell the cocaine, but rather helped the undercover officer in locating the third-party seller in exchange for drugs for his personal use. The state sought and received, over Abel's objection, a charge of accessory liability.
On December 15, 2004, the jury rendered a verdict acquitting the defendant of count one alleging sale of narcotics by a person who is not drug-dependent and finding him guilty of the remaining two counts, illegal sale of narcotics and illegal sale of narcotics within 1500 feet of a school. The trial court rendered a judgment of conviction as to the two counts, and on January 31, 2005, the trial court imposed a sentence of ten years, followed by five years special parole for the conviction of sale of narcotics (count two) and a three-year nonsuspendable sentence on possession within 1500 feet of a school (count three), to be served consecutively. The total effective sentence imposed by the trial court was thirteen years of incarceration followed by five years special parole.
At the sentencing hearing, the state misinformed the court as to the petitioner's maximum exposure on the two convictions. Although the petitioner had prior convictions for sale and possession, he was not charged in a part B information as a subsequent offender. The state incorrectly informed the trial court that because the petitioner had prior drug convictions, he was exposed to a maximum sentence of thirty (30) years under § 21a–277, and three (3) nonsuspendable years on the sale within 1500 feet of a school conviction under § 21a–278a(b). The state asked the court to impose the maximum sentence of 33 years. The court accepted the state's misrepresentation of the petitioner's maximum possible sentence of thirty-three (33) years. Abel did not object to the state's error, attempt to correct the record or inform the court that the actual maximum sentence that could be imposed was actually eighteen (18) years, fifteen (15) years on the conviction for sale of narcotics under § 21a–277, and three (3) years mandatory time on the conviction for sale of narcotics within 1500 feet of a school under § 21a–278a(b). In fact, during the sentencing, Abel, herself, referred to the petitioner's maximum sentence incorrectly as thirty-three (33) years.
Prior to imposing the sentence, the trial court explained that it did not intend to impose the maximum sentence. The court then imposed a sentence of thirteen (13) years incarceration, ten (10) years on count two, sale of narcotics, and three (3) years mandatory minimum time on count three, sale near a school. The trial court ordered the sentences to run consecutive, for a total of 13 years, followed by 5 years special parole. Adding the petitioner's prison and special parole time, the sentence imposed was eighteen (18) years. Eighteen (18) years was, in fact, the maximum sentence the petitioner faced on his two convictions—fifteen (15) years for illegal sale of narcotics under § 21a–277a and three (3) years for illegal sale of narcotics within 1500 feet of a school under § 21a–278(a). The sentence imposed by the trial court of eighteen (18) years, including five (5) years special parole, is three (3) years more than the fifteen (15) years trial counsel informed the petitioner he could receive on the charges in the December 1, 2004 notification.
The petitioner's present release date is December 19, 2019, followed by 5 years special parole.
Following the imposition of the sentence, the petitioner indicated his intent to appeal his conviction by signing the court form entitled “Notice of Right to Appeal Judgment of Conviction,” at his sentencing on July 31, 2005. No appeal, however, was timely filed by Abel. On December 27, 2005, the petitioner brought his first petition for a writ of habeas corpus, in which he claimed trial counsel was ineffective in failing to file a timely appeal.
The petitioner also filed a grievance with the Fairfield Judicial District Grievance Panel, which found probable cause that Abel had violated certain rules of professional conduct. The matter was referred to the Statewide Grievance Committee and on May 11, 2006, the Committee sustained the complaint against Abel on one count, finding that she violated Rule 1.3 by failing to maintain file copies of certain important documents, including the appeal. Tyrone King v. Heather A. Abel, Grievance Complaint # 05–1117. The Committee concluded: “It is of course prudent that an attorney keep copies of all documents filed in court on behalf of any client. When that client is in the situation faced by the Complaint—indigent, incarcerated and in need of a public defender to file an appeal—it is axiomatic that the lawyer make copies of such important filings.” Id.
On April 19, 2006, the petitioner's first habeas petition was resolved by stipulated judgment, in which the parties agreed that the petitioner's right to appeal should be restored. On July 5, 2006, the petitioner filed an appeal of his conviction, and on November 18, 2008, the Supreme Court affirmed the petitioner's convictions. State v. King, supra, 289 Conn. 499. This petition for writ of habeas corpus followed.
In the amended petition, the petitioner claims that Abel's performance was deficient during the pretrial stage of the proceedings, in that she: (1) failed to meet with and properly advise the petitioner with respect to the state's offers of a plea bargain and with respect to the risks that petitioner took by choosing to contest the state's allegations at trial; (2) rejected the state's offers without first obtaining informed consent from the petitioner; and (3) failed to maintain a file that accurately and adequately reflected the process by which she advised the petitioner and accepted his decision to reject the state's offers. He claims that had Abel performed reasonably the case would have been different in that he would have accepted the state's plea offer and served a drastically shorter sentence.
The petitioner also claims that his trial counsel acted unreasonably during the trial by failing to: (1) object to the trial court's jury charge on accessorial liability; (2) present a defense to certain counts of the information; (3) confront the state's witnesses effectively on cross-examination; and (4) present a proper summation to the jury. By way of relief, the petitioner seeks reversal of the judgment, and the opportunity to plead guilty.
The United States Supreme Court has established a two-prong test that the petitioner must prove to establish an ineffective assistance claim: (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Ham v. Commissioner of Correction, 301 Conn. 697, 703–04, 23 A.3d 682 (2011).
The Connecticut Supreme Court has explained that: “The first prong requires a showing that ‘counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the [s]ixth [a]mendment.' “ Johnson v. Commissioner, 285 Conn. 556, 575, 941 A.2d 248 (2008) quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the second prong of the test, prejudice, the petitioner must show that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is unreliable. Strickland v. Washington, supra, 466 U.S. 687; Ebron v. Commissioner of Correction, 120 Conn.App. 560, 992 A.2d 1200, 2010, cert. granted 297 Conn. 912, 995 A.2d 954 (2010). Ultimately, the “benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, supra, 466 U.S. 686.
Here, the petitioner claims that his trial counsel failed to provide effective assistance in advising him as to whether to accept the state's plea offer. It is well established that “[a] criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, [466 U.S. 686]. This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. Baez v. Commissioner of Correction, 34 Conn.App. 236, 242–43, 641 A.2d 147, cert. denied, 231 Conn. 905, 906, 648 A.2d 149 (1994). Pretrial negotiations implicating the decision of whether to plead guilty is a critical stage in criminal proceedings; Colson v. Smith, 438 F.2d 1075, 1078 (5th Cir.1971); and plea bargaining is an integral component of the criminal justice system and essential to the expeditious and fair administration of our courts. Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977); see Statewide Grievance Committee v. Whitney, 227 Conn. 829, 842, 633 A.2d 296 (1993). ‘[Plea bargaining] leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned.’ (Internal quotation marks omitted.) Statewide Grievance Committee v. Whitney, supra, 842.” Copas v. Commissioner of Correction, 234 Conn. 139, 153–54, 662 A.2d 718 (1995).
The decision to plead guilty is “ordinarily the most important single decision in any criminal case.” Ebron v. Commissioner of Correction, supra, 120 Conn.App. 572, quoting Boria v. Keane, 99 F.3d 492, 496–97 (2d Cir.1996), cert. denied, 521 U.S. 1118, 117 S.Ct. 2508, 138 L.Ed.2d 1012 (1997). “Although this decision [to plead guilty] 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 heavily upon counsel's independent evaluation of the charges and defenses, applicable law, the evidence and the risks and probable outcome of a trial ․ Siemon v. Stoughton, 184 Conn. 547, 556 n.3, 440 A.2d 210 (1981).” Copas v. Commissioner, supra, 234 Conn. 154.
Turning to the first prong of the Strickland test, the court must determine if Abel's performance in advising the petitioner regarding the plea offers fell below an objective standard of reasonableness. To satisfy this performance prong of the test, the petitioner must show that “his attorney's representation was not reasonably competent or within the range of competence displayed by lawyers of ordinary training and skill in the criminal law.” Ebron v. Commissioner of Correction, supra, 120 Conn.App. 567, quoting Fernandez v. Commissioner of Correction, 291 Conn. 830, 834–35, 970 A.2d 721 (2009).
Three recent Appellate Court decisions have determined that a trial attorney's failure to properly and meaningfully advise the petitioner regarding whether to accept a plea offer, constituted ineffective assistance of counsel. Sanders v. Commissioner of Correction, 83 Conn.App. 543, 851 A.2d 313, cert. denied 271 Conn. 914, 859 A.2d 569 (2004) (counsel's failure to meaningfully explain plea offer was deficient); Ebron v. Commissioner of Correction, 120 Conn.App. 560, 992 A.2d 1200, cert granted 297 Conn. 912 (trial counsel's failure to recommend plea was ineffective); H.P.T. v. Commissioner of Correction, 127 Conn.App. 480, 14 A.3d 1047 (2011), pet. cert. filed March 28, 2011 (counsel's failure to communicate plea offer through an interpreter was deficient). Other courts have held similarly. See e.g., United States v. Gordon, 156 F.3d 376, 380 (2d Cir.1998) (failure to advise client fully on whether plea appears desirable constituted ineffective assistance of counsel); Boria v. Keane, supra, 99 F.3d 492 (failure to inform petitioner regarding difficulties in obtaining an acquittal in a “buy and bust” case); United States v. Day, 969 F.2d 39, 43 (3d Cir.1992) (advice that was so insufficient and incorrect, it undermined petitioner's ability to make intelligent decision whether to accept plea).
The court turns first to the issue of trial counsel's failure to correctly inform the petitioner regarding his maximum exposure if he went to trial and was found guilty by the jury. The Connecticut Supreme Court has held that the “defendant's awareness of the maximum sentence possible is an essential factor in determining whether to plead guilty ․” (Emphasis added.) State v. Childree, 189 Conn. 114, 126, 454 A.2d 1274 (1983); State v. Collins, 176 Conn. 7, 9–10, 404 A.2d 871 (1978). “Knowledge of the comparative sentence exposure between standing trial and accepting a plea offer will often be crucial to the decision whether to plead guilty.” United States v. Day, supra, 969 F.2d 44; United States v. Gordon, 156 F.3d 376, 380 (2nd Cir.1998). Failure to correctly advise a petitioner concerning the maximum exposure upon conviction has been found to constitute deficient performance. United States v. Gordon, supra, 156 F.3rd 376 (counsel informed defendant that his exposure was 120 months when it was actually 262 to 327 months); United States v. Day, supra, 969 F.2d 39 (counsel informed defendant that his maximum exposure was 11 years, when he was sentenced to 22 years and his maximum exposure was actually much greater).
Here, the evidence was undisputed that prior to December 1, 2004, the state offered the petitioner 3 1/2 years concurrent to the sentence the petitioner was then serving. When Abel relayed this offer to the petitioner, she informed him, incorrectly, that his maximum exposure on the charges he was facing was fifteen (15) years, when in reality it was twenty (23) years—a substantial difference of eight (8) years. In addition, Abel failed to advise the petitioner that after a trial, the trial court could impose a maximum sentence of 23 years consecutive to the sentence he was then serving.
The court finds that trial counsel's error and omission in advising the petitioner regarding his maximum exposure after a trial constituted deficient performance.
Turning next to the issue of accessory liability, all three counts of the information alleged that the petitioner “sold, dispensed or gave a certain narcotic substance, to wit: crack cocaine, to Undercover Police Officer ․” Although the information charged the petitioner as a principal and not an accessory, under Connecticut law such a specific allegation in the information was not necessary. “Under Connecticut law, a defendant may be convicted as an accessory even though he was charged only as a principal as long as the evidence presented at trial is sufficient to establish accessorial conduct.” State v. Williams, 220 Conn. 385, 388, 599 A.2d 1053 (1991), quoting State v. Fleming, 198 Conn. 255, 268 n.15, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S.Ct. 1797, 90 L.Ed.2d 342 (1986); State v. Bagley, 35 Conn.App. 138, 142, 644 A.2d 386, cert. denied, 231 Conn. 913, 648 A.2d 157 (1994). There is “no such crime as ‘being an accessory’; ․ The accessory statute merely provides alternate means by which a substantive crime may be committed.” State v. Harris, 198 Conn. 158, 163, 502 A.2d 880 (1985), quoting State v. Baker, 195 Conn. 598, 608, 489 A.2d 1041 (1985).7
Abel should have been aware of this well-established law. In addition, prior to the trial Abel had sufficient information, based on the charges, the state's evidence and the petitioner's own version of events, that the state could pursue a theory of accessory liability and/or a jury charge on this issue. She testified that she understood that the state had a strong case and could prove that the petitioner took the money from the undercover officer, went to a third party and returned with drugs, which he turned over to the undercover officer. The petitioner did not dispute these facts but rather claimed that he did not “sell” the drugs, but merely assisted in the sale so that he could obtain drugs for his personal use. The petitioner believed that his version of events provided a defense to the charges and did not know, because Abel failed to tell him, that based on either the state's or his version of events, he could be found guilty as an accessory. The petitioner also believed that he had a good defense because he was drug dependent at the time of his arrest. He did not know, because Abel did not adequately inform him, that his drug dependence was only a defense to one of the three charges.
Based on these circumstances, Abel should have anticipated that under Connecticut law, the state could pursue a theory of accessory liability at trial and was likely to seek an instruction on that claim, if sufficient information was presented at trial. However, she did not realize this. At trial, Abel did not recall the details of her discussion with the petitioner as to the plea offers. However, she testified that she did not “understand accessory liability would be an issue” in the petitioner's trial and did not believe that the state “would proceed under an accessory liability theory.” Because Abel did not believe that accessory liability was an issue in the case, it is highly unlikely that she explained this issue to the petitioner. In addition, the court credits the petitioner's testimony that the issue of accessory liability was not explained to him, particularly because Abel failed to anticipate this issue. As it turned out, at trial, “both the defendant's testimony and [the undercover detective's] testimony supported an instruction that the defendant assisted the unnamed dealer at 40 Sanford Place in selling the drugs to [the undercover detective].” State v. King, supra, 289 Conn. 507.8
Because under either the state's version or the petitioner's version of events the petitioner could have been found guilty as an accessory, even though he was not specifically charged that way, it was incumbent upon trial counsel to anticipate the issue prior to trial, to inform and explain the issue to the petitioner, and to advise the petitioner as to how the issue could be raised at trial, whether he testified or not, that his own testimony could be used against him to find him guilty as an accessory, and how the issue would undermine his defense and impact his chances of prevailing at trial.9
Accordingly, trial counsel's failure to anticipate that the state could pursue a theory of accessory liability at trial and inform the petitioner that he could be found guilty as an accessory on any of the three charges constituted deficient performance. This is particularly true here because trial counsel failed to adequately explain to the petitioner that his drug dependency defense was only a defense to one of the three charges.
The court is aware that in assessing trial counsel's performance, the habeas court is required to “recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland v. Washington, 466 U.S. 690. However, this presumption is rebuttable. Sanders v. Commissioner, supra, 83 Conn.App. 551. “In determining whether the presumption should apply, ․ acts of ineffective assistance in the same matter may be considered in making that determination.” Id.
The court finds that the petitioner has provided sufficient evidence to rebut the presumption of adequate assistance normally afforded to trial counsel. First, Abel had no recollection of most of her representation of the petitioner generally, or specifically as to his rejection of the state's plea offers. At the time of her representation of the petitioner in 2004 and 2005, Abel did not make any contemporaneous notes or memoranda reflecting her discussions or meetings with the petitioner and recalled almost no details of those meetings. The best Abel could say as to most matters was what her general practices were at the time. Although clearly an attorney's general practices may have some probative value on the attorney's performance in a particular case, the court finds such practices lack any probative value here because of Abel's marked inability to recall critical events concerning her representation of the petitioner.10 Given Abel's utter lack of recollection of the events at issue in this case, there is little for the court to presume about her representation of the petitioner in this matter. Boria v. Keane, supra, 99 F.3d 497 (presumption not applied in part where attorney's testimony did not give much indication as to what occurred during discussions with defendant).
In addition, other significant errors made by trial counsel during the course of this case, and on appeal, convinces the court not to afford Abel the presumption of effective performance in this case. The court finds that Abel made the following additional, critical and unreasonable errors in this case: (1) at the petitioner's sentencing, she failed to correct the state's misrepresentation that the petitioner could be sentenced as a subsequent offender to thirty (30) years on the sale charge, when he was not charged as a subsequent offender; 11 (2) she failed to take a timely appeal of the petitioner's conviction or if she did so, failed to keep a file stamp copy of the appeal; and (3) she was found to have violated the code of professional conduct by failing to keep file copies of important filings.
Thus, in view of Abel's lack of recollection of her representation of the petitioner, particularly, any discussions with him as to the ramifications of accepting and rejecting the state's plea offer, combined with the fact that she committed other significant errors in her representation of the petitioner, the court finds that the presumption that Abel's conduct was adequate has been rebutted.
Turning to the second prong of the Strickland test, the court must determine if the petitioner has proved that there is a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, 466 U.S. 694; Ebron v. Commissioner, supra, 120 Conn.App. 567. In a case such as this one involving whether the petitioner has received adequate advice as to whether to accept a plea, the petitioner must “show that he would have accepted the offer and that the court would have rendered judgment in accordance with that offer.” Sanders v. Commissioner of Correction, 83 Conn.App. 552.
The Sixth Amendment protections are implicated by a decision to reject a plea offer where the claim is that the rejection of the offer was due to counsel's ineffectiveness. Ebron v. Commissioner of Correction, supra, 120 Conn.App. 576–77. “[A]fter rejecting the proposed plea bargain and receiving a fair trial, [a defendant] may still show prejudice if the plea bargain agreement would have resulted in a lesser sentence.” Id., quoting Engelen v. United States, 68 F.3d 238, 241 (8th Cir.1995); see also Williams v. Jones, 571 F.3d 1086, 1088 (10th Cir.2009) (“The fact that [the petitioner] subsequently received a fair trial (with a much greater sentence) simply does not vitiate the prejudice from the constitutional violation”).
The petitioner testified 12 that had he known that he could be found guilty as an accessory to the sale charge, that his drug dependency defense did not apply to both charges, and that his exposure was 23 years consecutive, he would have accepted the state's plea offer.13 Had he accepted any one of the state's plea offers, he would have received a lesser sentence, which he would have completed by June 30, 2008. His present release date from prison is December 19, 2019, after which he will begin five years of special parole. Thus, the petitioner has already been incarcerated for a significantly greater amount of time than he would have been had he accepted any of the state's plea offers. Courts have found that any amount of additional time in prison may constitute prejudice. Ebron, supra, 120 Conn App. 582; Glover v. United States, 531 U.S. 198, 203, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001).
The respondent claims that the petitioner has not established prejudice in Abel's failure to correctly inform the petitioner of his maximum exposure on the charges. The respondent's entire argument on this point is: “All the petitioner has shown is that Attorney Abel was not a perfect scrivener. Had the petitioner received a sentence of greater than 15 years, there could possibly be prejudice. But that is not what occurred in this case.” Contrary to the respondent's claim, this is precisely what happened in this case.
Abel notified the petitioner that his maximum exposure was fifteen (15) years, and did not inform him that the maximum sentence could be served consecutively to the sentence he was serving. The maximum time that the defendant faced on his convictions was eighteen (18) years, 1–15 years on the sale of narcotics count and three (3) years nonsuspendable time on the sale of narcotics within 1500 feet of a school. On the sale of narcotics conviction, the trial court sentenced the petitioner to 10 years incarceration and 5 years special parole for a total of 15 years, the maximum amount of time that could be imposed for that offense. On the conviction for sale of narcotics within 1500 feet of a school, the trial court sentenced the defendant to the maximum amount of time, three (3) non-suspendable years. Those sentences were to be consecutive to one another for a total incarceration time of thirteen (13) years, five (5) years special parole or eighteen (18) years.
At trial, respondent admitted that when the sentencing court imposes a period of special parole to follow incarceration, the special parole time is counted as part of a defendant's total sentence. This admission is consistent with Connecticut law on special parole that holds that special parole is part of the sentence and a total effective sentence including special parole may not exceed the maximum sentence for any given charge. State v. Tabone, 279 Conn. 527, 536, 902 A.2d 1058 (2006); General Statutes § 54–128(c) (“total length of the term of incarceration and term of special parole combined shall not exceed the maximum sentence of incarceration authorized for the offense for which the person was convicted”); General Statute § 54–125e(f) (“If the board revokes special parole for a parolee, the chairperson may issue a mittimus for the commitment of such parolee to a correctional institution for a period not to exceed the unexpired portion of the period of special parole”). When special parole is imposed by the trial court, the defendant “begins to serve the sentence of special parole after “the expiration of the maximum term or terms of imprisonment imposed by the court ․” General Statutes § 54–125e(a). If a defendant violates a term or condition of his or her special parole, he is returned to the custody of department of correction and may be “retained in a correctional institution for a period equal to the unexpired portion of the period of special parole.” General Statutes § 54–128(c).14 “The total length of the term of incarceration and term of special parole combined shall not exceed the maximum sentence of incarceration authorized for the offense for which the person was convicted.” State v. Tabone, supra, 279 Conn. 538. Thus, because special parole is part of the petitioner's sentence, the trial court imposed a sentence greater than petitioner believed he could receive, based on Abel's advice.
Ultimately, the issue for any habeas court is whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. In this case, there were so many substantial errors made during the pretrial proceedings and the sentencing process that the court does not believe that the petitioner's rejection of the plea offers was a just result.
The court finds that had the petitioner been properly advised that he could be found guilty as an accessory, that his defense of drug dependence only applied to one charge or that his maximum exposure was 23 years consecutive, it is reasonably probable that the petitioner would have accepted the state's offer of 3 1/2 years prior to trial. Accordingly, the court concludes that the petitioner has sustained his burden to prove he was prejudiced by trial counsel's deficient performance in this case.
Having determined that trial counsel's performance was deficient and that the petitioner was prejudiced, the court must determine what remedy to apply. In his amended petition, the petitioner seeks an order that “the judgment in State v. Tyrone King, CR04–200607 be reversed and the case be restored to the docket of the Bridgeport Superior Court for further proceedings necessary to remedy the petitioner's deprivation of his right to effective assistance of counsel, including the opportunity to plead guilty pursuant to the terms of the state's plea offer in 2004 and if such relief is granted and the respondent fails to comply with such orders within 15 days, that petitioner be released from custody.”
It is well established that the habeas court has discretion to frame a remedy that is commensurate with the scope of the constitutional violation. Brooks v. Commissioner, 105 Conn.App. 149, 160, 957 A.2d 699, cert. denied, 286 Conn. 904, 943 A.2d 1101 (2008); Ebron v. Commissioner, 120 Conn.App. 586. “Specific performance of a plea agreement is a constitutionally permissible remedy. Mabry v. Johnson, 467 U.S. 504, 510–11 n.11, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984). The availability of specific performance, however, is not a matter of right but instead is dependent on an evaluation of equitable considerations, and such a determination is within the discretion of the court. State v. Rivers, 283 Conn. 713, 734, 931 A.2d 185 (2007); see also United States v. Day, supra, 969 F.2d 47 (while second opportunity to accept plea agreement ought not be automatic, it does not follow that remedy of specific performance is never appropriate). In United States v. Morrison, 449 U.S. 361, 365, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981), the United States Supreme Court stated: ‘Our approach has thus been to identify and then neutralize the [constitutional] taint by tailoring relief appropriate in the circumstances to assure the defendant the effective assistance of counsel and a fair trial.’ See also United States v. Carmichael, [216 F.3d 224, 227 2d. Cir.2000].” Ebron v. Commissioner, supra, 120 Conn.App. 586–7 (footnote omitted).
The remedy of specific performance is appropriate where “no relief other than the opportunity to accept the initial plea offer would remedy the petitioner's constitutional deprivation suffered as a result of [counsel's] ineffective assistance.” Id. The Appellate Court has approved of the remedy of specific performance in cases similar to this case where the habeas court found that counsel was ineffective in failing to advise the petitioner concerning a plea offer, and the petitioner went to trial and received a greater sentence. Sanders v. Commissioner of Correction, supra, 83 Conn.App. 543 (affirming remedy of habeas court reducing sentence, imposed after a jury trial, to reflect pending plea offer rejected as result of ineffective assistance of pretrial counsel); H.P.T. v. Commissioner of Correction, supra, 127 Conn.App. 480 (affirming the habeas court remedy of directing the sentencing court to vacate the petitioner's sentence, imposed after a jury trial, and to resentence the petitioner to a sentence that did not exceed that last offer, by the court). Specific performance has also been ordered where the counsel was ineffective in advising the petitioner regarding whether to accept the state's offer or plead guilty without an agreement and leave the sentence to the trial court after a presentence investigation. Ebron v. Commissioner of Correction, supra, 120 Conn.App. 560 (affirming habeas court remedy directing the trial court to vacate the petitioner's plea, allow the petitioner the opportunity to accept the state's offer, and then if the petitioner accepts the offer to resentence the petitioner in accordance with the plea agreement based on the existing charges and applicable law).
Here, like HPT, Sanders and Ebron, no relief other than the imposition of the state's plea offer of 3 1/2 would remedy the constitutional deprivations suffered by the petitioner as a result of trial counsel's ineffective assistance.15 Although the state made two sets of offers to the petitioner prior to trial and during jury selection, both plea deals included an offer of 3 1/2 years concurrent with the sentence the petitioner was serving. Moreover, Abel's deficient performance was directly related to the state's 3 1/2 concurrent offer made prior to jury selection. Thus, even though a number of offers were made to the petitioner, the court finds that it was the 3 1/2 concurrent offer that petitioner would have accepted had that offer been meaningfully explained to him.16
Thus, the court finds that to remedy the constitutional violation of ineffective assistance of counsel in the case, the petitioner's sentence should be reduced to 3 1/2 years concurrent. The court is mindful that actual specific performance requires that the petitioner's conviction be vacated, he be offered a plea of 3 1/2 years concurrent and that he be allowed to accept it. However, because petitioner has been found guilty by a jury and the court has not found any trial counsel performance ineffective, the court sees no reason to disturb the jury verdicts solely for the purpose of allowing the petitioner to accept the plea and plead guilty in order to received a 3 1/2 concurrent sentence. See Sanders v. Commissioner of Correction, supra, 83 Conn.App. 543; H.P.T. v. Commissioner of Correction, supra, 127 Conn.App. 480; Boria v. Keane, supra, 99 F.3d 492.
The court concludes that trial counsel's performance prior to the trial was deficient in failing to meaningfully advise the petitioner as to the state's plea offers and that the petitioner was prejudiced by such conduct.17 Accordingly, the court remands the case to the trial court to vacate the petitioner's sentence and resentence him to 3 1/2 years concurrent. The underlying jury verdicts shall not be disturbed.
1. FN1. The respondent did not file a pre-trial brief and filed a post-trial brief of two and one-half pages. The respondent's counsel had difficulty responding to the court's questions during oral argument, explaining that he did not normally handle habeas cases. The respondent's two-page post-trial brief is of little assistance to the court as it contains no analysis of the issues presented at trial, and cites only two cases, one of which is Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In addition, the court finds respondent's resort to sarcasm rather than argument and legal analysis inappropriate. See respondent's brief at 2 (“Gideon's trumpet lives at GA# 2, even if Mr. King did not appreciate its final pitch”).
2. FN2. The court did not locate an amended information dated November 8, 2004 in the record. However, the petitioner asserted this allegation, and the state admitted it in its return. Thus, the court deems the allegation admitted and accepts it as true. See e.g. Practice Book § 10–19; Birchard v. New Britain, 103 Conn.App. 79, 85, 927 A.2d 985, cert. denied, 284 Conn. 920, 933 A.2d 72 (2007).
3. FN3. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
4. FN4. In calculating the petitioner's maximum exposure on the charges of twenty-three (23) years, it must be taken into account that under Connecticut law, a defendant cannot be convicted of both sale of narcotics and sale of narcotics as a non-drug dependent person because the first is a lesser included offense to the second. State v. Bradley, 60 Conn.App. 534, 545, 760 A.2d 520, cert. denied, 255 Conn. 921, 763 A.2d 1042 (2000); State v. Polanco, 126 Conn.App. 323, 336–39, 11 A.3d 188, cert, granted on other grounds, 300 Conn. 933, 17 A.3d 69 (2011). A conviction for sale of narcotics only would have resulted in a maximum sentence of 18 years (15 for the sale and 3 for the sale near a school). In either event, Abel failed to inform the petitioner of his correct maximum exposure if convicted because as she stated it was 15 years, which was incorrect under any calculation.
5. FN5. At trial, there was some evidence presented that there were occasions when the trial court in the Bridgeport courthouse would canvass a defendant regarding his or her rejection of a plea agreement. No party presented any evidence that such a canvass occurred in this case. Petitioner's counsel represents in his post-trial brief that after the trial, he contacted various clerks in Bridgeport to determine if there were any transcripts of such proceedings. Counsel learned that there were no such transcripts. Accordingly the court finds that the petitioner was not canvassed by the trial court concerning his decision to reject the state's plea offers.
6. FN6. On December 13, 2004, the state filed another information. That information is essentially the same three charges as the November 8, 2004 information.
7. FN7. Pursuant to General Statutes § 53a–8(a), “[a] person, acting with the mental state required for the commission of an offense, who solicits, requests, commands importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”
8. FN8. The Supreme Court refused to hear the petitioner's claim on appeal regarding the accessory charge because it was not properly preserved at trial. State v. King, supra, 289 Conn. 506.
9. FN9. The respondent's two-page brief does not address the issue of accessorial liability.
10. FN10. While the court understands that defense attorneys are unlikely to recall all of the specific details of events that occurred years earlier, the court finds it unusual that Abel could recall almost nothing about her conversations with the petitioner concerning whether he should accept the plea, particularly here where the petitioner's failure to accept a plea offer of 3 1/2 years concurrent led to a conviction and sentence of 18 years consecutive.
11. FN11. It was well established in January 2005, when the sentence was imposed in this case, that in order for a defendant to be sufficiently charged with a previous conviction for a similar offense, the criminal complaint or information must “name the date when, the town or city where, the crime for which and the court wherein such conviction was had.” General Statutes § 54–62; Practice Book § 36–14; State v. Ferrone, 96 Conn. 160, 173–75, 113 A. 452 (1921). “Our rules of practice and case law provide that where a defendant is exposed to greater punishment according to his status as a subsequent offender, a two part information is required, along with a full judicial proceeding on part B of the information.” State v. Foster, 45 Conn.App. 369, 389, 696 A.2d 1003, cert. denied, 243 Conn. 904, 701 A.2d 335 (1997). That was not done here.
12. FN12. It is appropriate for the habeas court to rely on the testimony of the petitioner, where it finds it credible. Sanders v. Commissioner of Correction, supra, 83 Conn.App. 543. Because trial counsel could not recall much related to her discussions with the petitioner as to the plea, and had no notes to refresh her recollection of any such discussions, trial counsel's testimony was not inconsistent with the petitioner's testimony on many points.
13. FN13. The court presumes that had the petitioner accepted any one of the state's offers, the court would have imposed it. Ebron v. Commissioner of Correction, supra, 120 Conn.App. 580. “[W]e do not believe that [the habeas petitioner] was required to demonstrate a reasonable probability that the trial court would have approved the plea agreement ․ We know of no case or statute that imposes such a requirement, and we think it unfair and unwise to require litigants to speculate as to how a particular judge would have acted under particular circumstances.” Ebron, supra, 120 Conn.App. 579, quoting Turner v. Tennessee, 858 F.2d 1201, 1207 (6th Cir.1988), vacated and remanded on other grounds, 492 U.S. 902.
14. FN14. A parole hearing is conducted on a violation under General Statute § 54–124e(d).
15. FN15. The respondent failed to present any equitable considerations that mitigated against renewal and acceptance of the state's offer. Ebron v. Commissioner of Correction, supra, 120 Conn.App. 560.
16. FN16. The court is mindful that the United States Supreme Court granted certiorari in Missouri v. Frye, 131 S.Ct. 856, 178 L.Ed.2d 622 (2011), and directed the parties to brief and argue the issue of the proper remedy for ineffective assistance of counsel during plea bargain negotiations where the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures. See Ham v. Commissioner, 301 Conn. 697, 701, n.5 (2011). The court is also mindful that the Connecticut Supreme Court has accepted certification in Ebron, 120 Conn. 560, cert. granted 297 Conn. 560, regarding the same question. Certification has been sought by the state in H.P.T. (A.C 31281), however, as of the date of this decision, the Supreme Court has not acted on the state's petition. Neither the United States Supreme Court nor Connecticut Supreme Court has rendered decisions in those pending cases, and this court is bound by the existing holdings of the state Appellate Court. Moreover, the respondent did not present any significant arguments regarding the proper remedy to be imposed in this case during argument or in its two-page brief.
17. FN17. As to the petitioner's claims in count two of the amended petition asserting that defense counsel was ineffective at trial, the court finds that petitioner has failed to meet his burden of showing that he was prejudiced by defense counsel's conduct at trial. Strickland v. Washington, supra, 466 U.S. 687. Since the court finds that prejudice has not been established, it is unnecessary for the court to address the performance prong of Strickland. See, e.g., Valeriano v. Bronson, 209 Conn. 75, 86, 546 A.2d 1380 (1988); Small v. Commissioner of Correction, 286 Conn. 707, 712–13, 946 A.2d 1203 (2008), cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336.
Cobb, Susan Quinn, J.