Trendel Tutson v. Warden, State Prison (2010)

DECISION

THE COURT:  Okay. I'm going to ask a couple questions before I begin.   Ms. Sulik and Ms. Bodner, you folks did approach me in chambers, and I understand that there is agreement that if Mr. Tutson had not had a sentence review, that there's agreement that his right to file for a sentence review may be restored, correct?

MS. SULIK:  That is correct, Your Honor.

MS. BODNER:  Correct.

THE COURT:  All right.   So on the basis of that understanding then, this Court will enter an order that the petitioner's right to file an application for sentence review is restored, provided that he has not previously filed his application for a sentence review.

If it's pending, you don't get a second shot at it.   If it's been filed and denied, you don't get a second shot at it.   If it has not been filed at all, then you may start-you may file the application for a sentence review, and the twenty-day clock, since apparently we can't verify that until sometime next week, hopefully Monday, the twenty-day clock, thirty-day clock I guess, the thirty-day clock in which to file for sentence review shall begin on Monday, the 24th.   All right?   Is everybody in agreement on that?

MS. BODNER:  Yes, Your Honor.

MS. SULIK:  The respondent is, Your Honor.

THE COURT:  All right.   Mr. Tutson, do you understand what's happening?

THE PETITIONER:  Yes, Your Honor.

THE COURT:  Okay. Now, as to this, from here on out this will constitute the decision of the Court.   The petition alleges that his trial defense counsel Sylvia Reid was ineffective and alleges two particular bases for that.   The first has to deal with the motion to suppress surrounding a statement attributed to Jorge Pagon.   I'm going to note that it is unclear whether in fact there was a motion to suppress filed or not.   It does appear that there was a suppression hearing held by the Court, at least the Court indicates six of the petitioner's pretrial brief, and the judge, the trial judge did consider the circumstances of the out-of-court identification and the statement, and the Court found there was nothing wrong with the photo array identification, nor with the statements.

Furthermore, there hasn't been any evidence introduced into this Court that would show that there was anything Attorney Reid could have done further.   It's true that she might not have been well-briefed on the law and perhaps didn't research it, but there's no showing that the motion to suppress would have been granted.

Consequently, there's no prejudice, and, of course, that being one of the key prongs of Strickland that there must be prejudice, as well as deficient performance, even if the Court assumes there's deficient performance, there's no prejudice.

As to the alibi witness, the record of course is clear that the trial court at least didn't consider that there was an adequate notice of alibi data.   Nevertheless, it does appear that the trial court worked quite hard to hold the door open so that the alibi evidence could have been presented.

Now, based on this case, and the trial that took place in front of this Court, the only alibi evidence that was not presented is the testimony of Ms. Ruby Thomas, and based upon the testimony presented to the habeas court, the Court will make a finding that her testimony does not arise to the level of establishing an alibi.   At best, it would corroborate the evidence presented by Julia Thomas, which the jury heard, and nevertheless, returned a finding of guilty beyond a reasonable doubt.

So while it appears that Ms. Reid may have been guilty of-and I use the term guilty not in any sort of pejorative sense-of deficient performance in not filing an appropriate notice of alibi defense, it's crystal clear that such failure did not operate to the prejudice of the petitioner.   Consequently, the Court cannot find that there was ineffective assistance of trial defense counsel.

Now, there are other factors that militate against finding ineffective assistance of counsel, and the first is that Mr. Tutson had two attorneys.   He was represented by Attorney Sheila Iverson, and the Court notes that there has been no allegation that Attorney Iverson was ineffective in any way, shape or form.   The presumption then is that she performed her duties to Mr. Tutson in an appropriate way.

Based upon all of the evidence presented to this Court during the one hour and ten minute hearing, evidentiary hearing, this Court cannot conclude that there has been any ineffective assistance of counsel that took place at his trial in 2002.

As a result, count one of the petition will be denied.   Count two is granted as indicated earlier with the proviso that sentence review is restored if it has not previously been filed, and the Court will find it is expressly contained within the record that the right to, the right to file sentence review and the documents were handed to Mr. Tutson, and that took place on May 20th, 2002, Exhibit 10, page eighty-nine, lines eighteenthrough twenty-seven.   It's clear that the notice for the right to have sentence reviewed, an application for review and notice of application form was handed to the clerk, and he signed receipt for it.

THE COURT:  Mr. Tutson, I wish you the best of luck on your application for sentence review, provided it has not previously been filed, so then I guess I can't prospectively wish you luck.   Is there any further business?

MS. SULIK:  None from the respondent, Your Honor.

THE COURT:  Clerk will now hand the appeal papers to Mr. Tutson.   All right.   Record will reflect appeal papers will be given to Mr. Tutson and counsel.   And, Ms. Bodner, you have nothing further?

ATTY. BODNER:  No, Your Honor.

THE COURT:  Very well.   This Court is now adjourned.

(Whereupon, court was adjourned.)

Stanley T. Fuger, J.

Fuger, S.T., J.