271955 v. Warden, State Prison (2010)

MEMORANDUM OF DECISION

On April 13, 2007, the petitioner, Fenix Dhaity, filed a petition for a writ of habeas corpus challenging his conviction which resulted from a guilty plea entered on January 13, 2004.   On that date, the petitioner pleaded guilty to tampering with a witness in violation of General Statutes § 53a-151(a).¹  On October 27, 2008, the petitioner filed the operative amended petition, his first amended petition, in which he alleges he is innocent of the charge to which he pleaded guilty and that he was denied the effective assistance of trial counsel.   He is seeking to withdraw his guilty plea.

The matter came to trial on February 3, 2010.   Prior to proceeding with his first witness, the petitioner withdrew the second count of the petition, which alleges actual innocence.   The Court heard testimony from the petitioner, Jacqueline Bachan, a correctional counselor for the department of correction, and Attorney Howard Ehring, the petitioner's trial counsel.   The petitioner entered into evidence transcripts of the underlying criminal proceedings, and the respondent proffered a copy of the Appellate Court decision in a prior criminal case involving the petitioner from which the underlying criminal case arose.   The Court ordered the parties to file posttrial briefs.   The petitioner filed a posttrial brief on June 8, 2010;  the respondent filed a posttrial brief on July 7, 2010.   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 Stamford-Norwalk, bearing docket number CR03-0144555, in which he was charged with two counts of tampering with a witness in violation of Connecticut General Statutes § 53a-151(a) and two counts of bribery of a witness in violation of Connecticut General Statutes § 53a-149(a).

2. The factual allegations underlying the charges are as follows:  “In 2003 ․ [the petitioner] was convicted by a jury of sexual assault in the first degree and kidnapping in the first degree.   While that case-while he was awaiting sentencing on that case, sentencing was scheduled for May 30, 2003-on April 6, 2003, the victim's in that case's sister, (sic) received a phone call from a Bristal Cordinan (ph.) who was [the petitioner's] cellmate at the time in the correctional facility that he was being housed at.   At that time, Mr. Cordinon offered the victim, through her sister, $10,000 dollars to change her testimony to come into court and change her mind, if you will.   He couched it as a business opportunity.   The cellmate was spoken to and he indicated that he made that call on behalf of [the petitioner].” ²

3. On the second day of jury selection, on January 13, 2004, the petitioner pleaded guilty under the Alford doctrine ³ to one count of witness tampering.   The state agreed to nolle the remaining charges.   The trial court, Nigro, J., thoroughly canvassed the petitioner and found his plea to be knowingly and voluntarily made with the assistance of competent counsel.⁴

4. Attorney Howard Ehring represented the petitioner in the above referenced matter.   He has been employed as a public defender for all of the twenty-four years he has been a member of the Connecticut Bar. For the majority of those years, he has worked in the judicial district of Stamford-Norwalk.   During all of his twenty-four years at the bar, he has practiced in the area of criminal defense.   As a public defender in Stamford, he has tried thousands of criminal cases, including over one thousand cases before Judge Nigro, a resident judge in that judicial district and the judge before whom the petitioner entered his plea.   At the time he represented the petitioner, Attorney Ehring had been practicing in the area of criminal defense for seventeen years.

5. On the plea date of January 13, 2004, the court, Nigro, J., sentenced the petitioner, in accordance with the plea agreement, to nine months to serve.   The sentence was to run consecutively to the twelve-year sentence that the petitioner was serving at that time on the sexual assault case.

6. Additional facts will be discussed as needed.

DISCUSSION

“Our Supreme Court has recognized that pretrial negotiations implicating the decision of whether to plead guilty is a critical stage, and, therefore, a defendant is entitled to adequate and effective assistance of counsel at this juncture of the criminal proceedings.”  Ebron v. Commissioner of Correction, 120 Conn.App. 560, 567, cert. granted on other grounds, 297 Conn. 912, 995 A.2d 954 (2010).  “[A]lmost every criminal defendant is faced with the crucial decision of whether to plead guilty or proceed to trial.   Although this decision 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.”  (Internal quotation marks omitted.)  Id., 572.

“[T]he governing legal principles in cases involving claims of ineffective assistance of counsel arising in connection with guilty pleas are set forth in [Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1985) ] and [Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ].   In Strickland, which applies to claims of ineffective assistance during criminal proceedings generally, the United States Supreme Court determined that the claim must be supported by evidence establishing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) 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 performances ․ Under the test in Hill, in which the United States Supreme Court modified the prejudice prong of the Strickland test for claims of ineffective assistance when the conviction resulted from a guilty plea, the evidence must demonstrate that there is a reasonable probability that, but for counsel's errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial.”  (Citation omitted;  internal quotation marks omitted.)  Joseph v. Commissioner of Correction, 117 Conn.App. 431, 434-35, 979 A.2d 568, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009).   Additionally, “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 identified because of ineffective assistance of counsel would have been successful at trial.”  (Internal quotation marks omitted.)  Johnson v. Commissioner of Correction, 285 Conn. 556, 571 n.11, 941 A.2d 248 (2008).   “ ‘Successful at trial’ means a more favorable outcome than that achieved in the pleading process.”  Brandy v. Commissioner of Correction, 89 Conn.App. 387, 393 n.5, 873 A.2d 1061 (2005).

In count one of his amended petition, the petitioner alleges that his guilty plea was not knowingly, intelligently and voluntarily made due to the ineffective assistance of Attorney Ehring.   Specifically, he alleges that Attorney Ehring failed to thoroughly investigate his case and that had a more thorough investigation been conducted Attorney Ehring would have advised him to proceed to trial where a better result would have been obtained.

“[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.”   Strickland v. Washington, supra, 466 U.S. 691.  “To succeed in his attack on the adequacy of counsel's pretrial investigation, the petitioner must show ․ that the investigation was inadequate, not merely imperfect ․ Williams v. Bronson, 21 Conn.App. 260, 267, 573 A.2d 330 (1990).   Additionally, the petitioner must demonstrate “what benefit additional investigation would have revealed ․ Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 (2001).

At the habeas trial, the petitioner testified that he had two to three meetings with Attorney Ehring prior to the start of jury selection, at which they discussed the charges against him and the state's evidence.   He also testified that Bristout Bourguiguon, the person who called the victim's sister, was his cellmate while he was on trial in the sexual assault case and that Bourguiguon had access to his court documents, which he left in his cell during the trial.   He denied instructing Bourguiguon to call the victim's sister to bribe the victim.   The petitioner further testified that after he pleaded guilty to the witness tampering charge, he received a statement allegedly penned by Bourguiguon, which he sent to Attorney Ehring and Attorney Susan Hankins, the head public defender in the Stamford office at the time.   Both Attorney Ehring and Attorney Hankins advised the petitioner that they did not believe the statement would help his case.   The petitioner could not recall who sent him the statement.   Bachan, a correctional counselor for the department of correction, testified that she notarized the statement but that she did not see Bourguignon write it.

Attorney Ehring testified at the habeas trial that he met with the petitioner seven times, during which they discussed the elements of the crimes charged and possible defenses.   He testified that he reviewed the state's file, police reports and witness statements.   He also listened to the audio recording of the phone calls to the victim's sister, on which two individuals are heard, one telling the other what to say.   Neither individual identifies himself on the recording;  however, Bourguiguon was identified as the caller, and Attorney Ehring considered the possibility that the petitioner could be identified as the individual heard coaching Bourguiguon.   Attorney Ehring acknowledged that he did not speak to Bourguignon or have an investigator speak to him.   He stated that Bourguiguon had offered to testify against the petitioner and had sent the state's attorney a letter seeking favorable treatment.   He believed he could effectively undermine Bourguiguon's credibility at trial, which he used to try to negotiate a deal for the petitioner.   Initially, the state made an offer of three years.   Attorney Ehring testified that he advised the petitioner not to accept the offer, believing the offer was substantially more than the case was actually worth.   Eventually, the state came down to eighteen months, which the petitioner rejected.   They proceeded to jury selection.   Attorney Ehring testified that he was prepared to continue to trial;  however, on the second day of jury selection, the petitioner followed his advice and accepted the court's offer of nine months.

Based on the above, this Court finds that the petitioner has not met his burden in demonstrating either deficient performance or prejudice regarding Attorney Ehring's representation of him in the underlying criminal case.   Attorney Ehring conducted an adequate pretrial investigation of the petitioner's case even though he did not speak directly to Bourguiguon.   He reviewed all the state's evidence against the petitioner and spoke to the petitioner on several occasions.   As testified to by Attorney Ehring, he believed he had enough information to undermine Bourguiguon's credibility at trial.

In any event, the petitioner has not shown what benefit additional investigation would have revealed.   During the habeas trial, reference was made to a statement allegedly written by Bourguiguon after the petitioner pleaded guilty but the statement was never introduced into evidence.   This court cannot speculate as to the contents of the statement.   Nor can it speculate as to the substance or import of what Bourguiguon may have said if interviewed by Attorney Ehring.  “Mere conjecture and speculation are not enough to support a showing of prejudice.”  (Internal quotation marks omitted.)  Hamlin v. Commissioner of Correction, 113 Conn.App. 586, 596, 967 A.2d 525, cert. denied, 291 Conn. 917, 970 A.2d 728 (2009).   Notably, both Attorney Ehring and Attorney Hankins reviewed the statement and determined that it would not have been helpful to the petitioner's case.   The petitioner faced a maximum exposure of twenty years incarceration.⁵  He was already serving a twelve-year sentence on the sexual assault case.   By pleading guilty, he received a fraction of the maximum sentence that could have been imposed.   During the plea canvass, he admitted that he was pleading guilty to get “this disposition agreement.” ⁶  “A guilty plea is not [i]nvalid whenever motivated by the defendant's desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged.”   (Internal quotation marks omitted.)  Savage v. Commissioner of Correction, 122 Conn.App. 800, 802-03, 998 A.2d 1247 (2010).   In light of the above, there is no reasonable probability that the petitioner, but for Attorney Ehring's alleged errors, would not have pleaded guilty and insisted on going to trial.

Moreover, the petitioner has presented absolutely no evidence to suggest that, had he instead chosen to go to trial, he would have been exonerated or achieved a lesser sentence.   Bourguiguon initially stated that he made the phone calls at the petitioner's bequest.   Even if he later recanted his statement, as suggested by the petitioner, it does not thereby follow that the petitioner would have been exonerated or received a lesser sentence.   While Attorney Ehring could have used any subsequent inconsistent statement to impeach Bourguignon, it is the role of the jury to determine where the truth lies, and a jury may very well have determined that Bourguiguon was initially telling the truth when he implicated the petitioner.   Regardless, as testified to by Attorney Ehring, the susceptibility of Bourguiguon's credibility to attack was instrumental in plea negotiations.   There is no reasonable probability that the petitioner would have fared any better had he chosen to go to trial where he would have faced twenty years of incarceration as opposed to a certain sentence of only nine months.

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. See Petitioner's Exhibit [Exh.] 6, p. 1..  FN1. See Petitioner's Exhibit [Exh.] 6, p. 1.

FN2. Petitioner's Exh. 6, p. 5..  FN2. Petitioner's Exh. 6, p. 5.

FN3. 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)..  FN3. 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).

FN4. Petitioner's Exh. 6, pp. 6-7..  FN4. Petitioner's Exh. 6, pp. 6-7.

FN5. At the time the charged offenses were committed, on April 6, 2003, both tampering with a witness and bribery of a witness were class D felonies, each carrying a maximum sentence of five years.   See Public Acts 2003, No. 259, §§ 48 and 52 (changing bribery of a witness and tampering with a witness from class D to class C felonies effective October 1, 2003);  General Statutes § 53a-35a(8) (“[for any felony committed on or after July 1, 1981, the sentence of imprisonment shall be a definite sentence and the term shall be fixed by the court as follows ․ for a class D felony, a term not less than one year nor more than five years”).   Accordingly, the four charges exposed the petitioner to a maximum sentence of twenty years..  FN5. At the time the charged offenses were committed, on April 6, 2003, both tampering with a witness and bribery of a witness were class D felonies, each carrying a maximum sentence of five years.   See Public Acts 2003, No. 259, §§ 48 and 52 (changing bribery of a witness and tampering with a witness from class D to class C felonies effective October 1, 2003);  General Statutes § 53a-35a(8) (“[for any felony committed on or after July 1, 1981, the sentence of imprisonment shall be a definite sentence and the term shall be fixed by the court as follows ․ for a class D felony, a term not less than one year nor more than five years”).   Accordingly, the four charges exposed the petitioner to a maximum sentence of twenty years.

FN6. Petitioner's Exh. 6, p. 3..  FN6. Petitioner's Exh. 6, p. 3.

Santos, Thelma A., J.