291453 v. Warden, State Prison (2010)

MEMORANDUM OF DECISION

The petitioner, Bobby Sullivan, alleges in his petition for a writ of habeas corpus, initially filed on August 31, 2006 and amended on December 3, 2009, that he was denied the effective assistance of counsel at his sentencing hearing in violation of the sixth and fourteenth amendments to the United States Constitution and article first, § 8, of the Constitution of Connecticut.   Consequently, he claims that his sentence should be vacated and the matter returned to the trial court for a new sentencing hearing, or, in the alternative, that he should be released.   For reasons set forth more fully below, the petitioner has failed to meet his burden of proof, and the petition shall be denied.

This matter came to trial on April 19, 2010.   The court heard testimony from the petitioner, Attorney Christopher DeMarco, his trial counsel, Sharon Sullivan, his mother, Bobby Sullivan, Sr., his father, and Lashanda Sullivan, his older sister.   In addition, the petitioner entered into evidence transcripts of his plea hearing and his sentencing hearing, a copy of his presentence investigation report, the statement that he gave to the police and the statement that John Fredlaw gave to the police.   Having reviewed all of the testimony and evidence, the court makes the following findings of fact.

FINDINGS OF FACT

1. The petitioner was the defendant in a criminal case in the judicial district of New Haven under docket number CR04-0035120.   He was charged with attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49(a)(2) and 53a-59(a)(5), assault in the first degree in violation of General Statutes § 53a-59(a)(5) and carrying a pistol without a permit in violation of General Statutes § 29-35.

2. The factual allegations underlying the charges, as summarized by the prosecutor, are as follows:  “[T]he incident dates back to September 14, 2004.   New Haven police were dispatched to the Adult Ed complex, at 580 Ella Grasso Boulevard, on a report of multiple shots fired.   It was approximately 1 p.m., in the middle of the day, as school was getting out.   At that time, they discovered one victim, Jonathan Fredlaw, who was on the side of his car on Ella Grasso Boulevard, bleeding from a gunshot wound to the back.   Within minutes, they discovered a second victim, Leandre Gravely, around the corner, shot, also in the left part of the chest.   Mr. Gravely ultimately died that day, as a result of that shooting.   Autopsy on Mr. Gravely revealed that he died as a result of a .380 caliber bullet.   A .25 caliber was removed from Mr. Fredlaw's back.   He did survive.   He was in the hospital for approximately two weeks as a result of his injuries.   He is back now and recovered, and back to his full range of activities.

3. “The police began their investigation at the scene.   They discovered two shell casings from a .25 caliber semi-automatic pistol.   The day after, they discovered a shell casing from a .380 automatic caliber pistol.   No guns were ever recovered related to this case.¹  In speaking with witnesses, they developed a suspect who rode up on a bicycle, wearing a green Celtics jersey with the number 34 and a green hat.   Further investigation revealed that the suspect was known as an individual by the name of Boogie J. Several witnesses picked out this defendant as [the] individual in the green Celtics jersey who rode up on a bike and drove around the parking lot.   What had happened that day was there was a fight earlier in the day at the school involving several students.   It began with an argument over a gold chain.   Some of the individuals were from the Newhallville section of the city and some were from the Tray section of the city.   As a result, phone calls were made and individuals came back to the school at approximately 12:45.   There was a group of about ten to fifteen individuals milling about at the school, waiting, specifically, for a student by the name of Terrence McNair.   When Mr. McNair came out of the school with several of his friends a verbal altercation began between him and individuals, including Anthony Duncan and Mr. Fredlaw.   At some point during the course of this, Mr. Duncan threw a punch, hitting an individual ․ next to Mr. McNair and a physical fight broke out.   At that time, this individual [the petitioner] was observed approximately ten feet away on a bike and another individual, Michael White, who is a co-defendant, was observed in [the] area also on a bike.

4. “Witnesses claim they heard a single shot fired, and then several individuals saw this defendant pull out what appeared to be a small pistol and [fire] towards the direction of Mr. Fredlaw, who had gotten off the ground from being in the physical fight.   And after hearing the first shot, began to run out of the area.   Mr. Fredlaw was hit in the back.   Ultimately, [the petitioner] was arrested several days later.   He gave a statement implicating himself, claimed that he had gotten the gun from Mr. White.   That there was a phone call from Mr. McNair that there was going to be trouble at the school.   And he rode, on a bike, with Mr. White and another juvenile, to the school, to provide back up.   He claimed that he saw the individuals gathering around and he decided to stay there, even though he could have rode away, at that time.   Even though he claimed he was outnumbered.   Ultimately, he claimed that Mr. Fredlaw got up from the ground and went towards him and he fired, believing he had a gun.   The physical evidence did not support that, because Mr. Fredlaw was shot in the back.   And several witnesses saw Mr. Fredlaw running from the scene.   We also have witnesses that would have testified that at the ․ evening after the shooting, [the petitioner] was observed in the company of Mr. White.   There [were] discussions in which [the petitioner] made statements that he meant to shoot Anthony Duncan, the individual who had thrown the punch.   And that he took possession of a similar looking firearm and left the area of Mr. White's sister's house on Winter Street in the city of New Haven.   The two pistols used in this case were not recovered.   Ultimately, [the petitioner] was arrested and Mr. White was arrested a few days later.” ²

5. On March 11, 2005, pursuant to a plea agreement, the petitioner pleaded guilty to the charges described supra.³  At the plea hearing, the court, Damiani, J., thoroughly canvassed the petitioner and found his pleas to be knowingly and voluntarily made with the assistance of competent counsel.⁴

6. Pursuant to the plea agreement, both the petitioner and the state retained the right to argue for a sentence within the following range:  no less than thirty years, execution suspended after twelve years, followed by five years of probation and no more than thirty years, execution suspended after twenty years, followed by five years of probation.⁵

7. On November 17, 2005, the court, Damiani, J., sentenced the petitioner to a total effective sentence of thirty years, execution suspended after twenty years, followed by five years of probation.⁶

8. The petitioner was represented by Attorney Christopher DeMarco.   Attorney DeMarco has been practicing law since December 1988.   In 1991, he began handling Part A criminal cases.   By 2005, approximately 75 percent of his practice consisted of criminal matters.

9. Additional facts will be discussed as needed.

DISCUSSION

The petitioner alleges in his amended petition that his attorney rendered ineffective assistance at his sentencing hearing by failing (1) to offer any mitigation evidence, (2) to address the presentence investigation report and (3) to secure the presence and participation of the petitioner's family at the hearing.

“It is axiomatic that the right to counsel is the right to the effective assistance of counsel ․ A defendant has the right to counsel at every critical stage, including sentencing.”  (Citations omitted;  internal quotation marks omitted.)  Copas v. Warden, 30 Conn.App. 677, 681-82, 621 A.2d 1378, cert. denied, 226 Conn. 901, 625 A.2d 1374 (1993).  “To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).  Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong.   To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed ․ by the [s]ixth [a]mendment ․ To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different ․ The claim will succeed only if both prongs are satisfied ․ It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203, cert. denied, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).

At the habeas trial, Attorney DeMarco had no recollection of whether he spoke to the petitioner's family between the time of the plea hearing and the sentencing hearing, whether the petitioner's family wanted to attend the sentencing hearing or even whether he talked to the petitioner about the sentencing hearing.   He described the petitioner as a frustrating client because despite his advice the petitioner rejected Judge Damiani's initial offer of twelve years.   Attorney DeMarco explained that since the petitioner rejected that initial offer it was highly unlikely that Judge Damiani would sentence the petitioner to twelve years even though he agreed to consider a sentence in between twenty and twelve years.   He further testified that besides arguing for a sentence closer to twelve years based upon the petitioner's mistake in rejecting the initial offer and his cooperation thus far there was not much else he could have argued on the petitioner's behalf.

The petitioner testified that he spoke to Attorney DeMarco on the phone several times before his sentencing hearing but that Attorney DeMarco did not prepare him to address the court at the hearing.   He explained that he did not address the court at his sentencing hearing because he felt there was nothing that he could say to change the judge's mind.   Yet, he also testified that if Attorney DeMarco had prepared him to address the court he would have expressed remorse for his actions.

The petitioner's father, mother and older sister testified at the habeas trial that they would have gone to the petitioner's sentencing hearing and spoken on his behalf but that they did not know about it until after the fact.   They also testified that the petitioner lived in a rough neighborhood, that he is a good kid who got involved with the wrong crowd and that he felt bad about his actions.

In addition to having his family present to speak on his behalf and to preparing him to speak on his own behalf, the petitioner argues that Attorney DeMarco should have pointed out certain details of the offense at the sentencing hearing.   Specifically, he claims Attorney DeMarco should have highlighted that both sides involved in the fight at the school had guns, that White gave the petitioner the gun, that upon arriving at the school, someone informed the petitioner that the other side had guns, that Fredlaw, like the petitioner, came to the school as back up and that Fredlaw told the police that he got shot while he was fighting not while he was trying to run away.   He also asserts that Attorney DeMarco should have explained that the dangerous weapon he was convicted for carrying in 2001 was a bb gun.

Even though Attorney DeMarco clearly could have done more at the petitioner's sentencing hearing, including ensuring that the petitioner's family knew about the hearing, the petitioner has failed to meet his burden in demonstrating that Attorney DeMarco's conduct at the sentencing hearing fell below an objective standard of reasonableness.  “To meet the standard of effective representation, trial counsel is not required to make every conceivable argument as to mitigation.”   Aponte v. Warden, Superior Court, judicial district of New Haven, Docket No. CV 98 0415913 (October 30, 2001, Downey, J.T.R.).   In arguing for a sentence lower than twenty years, Attorney DeMarco focused on the fact that the petitioner was exposed to twenty years “simply because he didn't exercise his proper discretion and accept the bargain at twelve.” ⁷  Contrary to the petitioner's claim, however, that is not all Attorney DeMarco said on the petitioner's behalf.   In addition, he mentioned that the petitioner lived in a dangerous environment and was susceptible to being led, which is what he believed happened in the present case.   He also pointed out that the evidence suggested that the young people present at the school that day were prepared for some type of engagement, and he stressed that the petitioner had made good decisions in the past such as cooperating with the police.⁸  Despite the alleged deficiencies in Attorney DeMarco's representation, his conduct falls within “the wide range of reasonable professional assistance.”  (Internal quotation marks omitted.)  Strickland v. Washington, supra, 466 U.S. 689.

Moreover, the petitioner has not met his burden in proving that there is a reasonable probability that the result of the proceeding would have been different but for Attorney DeMarco's alleged deficient performance.   The petitioner pleaded guilty to shooting into a crowd of young people gathered at a school in the middle of the day.   Judge Damiani found the location and timing of the crime to be the “shocking thing about this incident.” ⁹  He commented that the petitioner and his co-defendant “did not show any regard for human life.   Those of their intended targets [or] those of innocent bystanders who just happened to be in the wrong place at the wrong time.” ¹⁰  One person died, and another was seriously injured.   Although there was evidence that others involved in the incident were in possession of guns, there was no evidence that they used them in any fashion.   The petitioner fired two shots from his bicycle.   He was not involved in the physical fight.   After firing his weapon, the petitioner left the scene and reported to his probation officer as if nothing had happened.   Additionally, while he was incarcerated the petitioner wrote a letter in which “he notes that the person who's supposed to be in the ground is still out there and that when he gets out, he's going to give him a headshot.” ¹¹  Based on the above, Judge Damiani found the petitioner to be dangerous and to have no regard for human life.   He sentenced the petitioner as he did “to keep him off the streets for a period of time [and] to deter other people from following in his footsteps.” ¹²

There is no reasonable probability that Judge Damiani or any other judge would have sentenced the petitioner to less time if Attorney DeMarco had presented any additional mitigation evidence, if the petitioner had expressed remorse or if the petitioner's family had pleaded for leniency on his behalf.   Regardless of whether Fredlaw was running away or fighting when the petitioner shot him, he was shot in the back.   Similarly, regardless of the fact that the petitioner's 2001 conviction for carrying a dangerous weapon was for carrying a bb gun, he was carrying and fired a semi-automatic gun in the present case, which resulted in serious injuries to Fredlaw.   Furthermore, even if the petitioner expressed remorse and his family spoke about his rough neighborhood and how he felt bad about his actions, it would not change the fact that the petitioner chose to fire a gun, not once but twice, into a crowd of young people on school grounds in the middle of the day.   As noted in the petitioner's presentence investigation report, “[t]here is no doubt that this incident is going to have a lasting impact on the students and faculty ․ who clearly have great reason to be concerned for their safety while on school grounds.” ¹³  There is nothing Attorney DeMarco could have said or done at the petitioner's sentencing hearing that would have changed the “shocking thing about this incident,” i.e., the location and timing of it, which appears to have dictated the petitioner's sentence.   Neither deficient performance nor prejudice has been proven.

CONCLUSION

Based on the foregoing, the petition for a writ of habeas corpus is DENIED.   Judgment may enter in favor of the respondent.   Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days.

BY THE COURT,

T. Santos, J.

FOOTNOTES

FN1. The guns were later recovered.   See Petitioner's Exhibit [Exh.] 2, p. 4 (“the guns initially were never recovered.   Both guns later turned up ․”).  FN1. The guns were later recovered.   See Petitioner's Exhibit [Exh.] 2, p. 4 (“the guns initially were never recovered.   Both guns later turned up ․”)

FN2. Petitioner's Exh. 1, pp. 9-12..  FN2. Petitioner's Exh. 1, pp. 9-12.

FN3. The petitioner pleaded guilty to the charge of attempt to commit assault in the first degree under the Alford doctrine.   See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).  “A defendant who pleads guilty under the Alford doctrine does not admit guilt but acknowledges that the state's evidence against him is so strong that he is prepared to accept the entry of a guilty plea.”  (Internal quotation marks omitted.)  Kearney v. Commissioner of Correction, 113 Conn.App. 223, 225 n.1, 965 A.2d 608 (2009).   His guilty pleas to the other two charges were straight guilty pleas.   See Petitioner's Exh. 1, pp. 3-4..  FN3. The petitioner pleaded guilty to the charge of attempt to commit assault in the first degree under the Alford doctrine.   See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).  “A defendant who pleads guilty under the Alford doctrine does not admit guilt but acknowledges that the state's evidence against him is so strong that he is prepared to accept the entry of a guilty plea.”  (Internal quotation marks omitted.)  Kearney v. Commissioner of Correction, 113 Conn.App. 223, 225 n.1, 965 A.2d 608 (2009).   His guilty pleas to the other two charges were straight guilty pleas.   See Petitioner's Exh. 1, pp. 3-4.

FN4. Petitioner's Exh. 1..  FN4. Petitioner's Exh. 1.

FN5. Petitioner's Exh. 1, pp. 7-9..  FN5. Petitioner's Exh. 1, pp. 7-9.

FN6. Petitioner's Exh. 2, p. 11..  FN6. Petitioner's Exh. 2, p. 11.

FN7. Exh. 2, p. 9..  FN7. Exh. 2, p. 9.

FN8. Petitioner's Exh. 2, pp. 7-9..  FN8. Petitioner's Exh. 2, pp. 7-9.

FN9. Exh. 2, p. 2..  FN9. Exh. 2, p. 2.

FN10. Exh. 2, p. 2..  FN10. Exh. 2, p. 2.

FN11. Petitioner's Exh. 2, p. 4..  FN11. Petitioner's Exh. 2, p. 4.

FN12. Petitioner's Exh. 2, p. 10..  FN12. Petitioner's Exh. 2, p. 10.

FN13. Petitioner's Exh. 3..  FN13. Petitioner's Exh. 3.

Santos, Thelma A., J.