Alejandro Gonzalez v. Warden (2011)

MEMORANDUM OF DECISION

THE COURT:  I've considered the testimony, the exhibits, and the arguments of counsel, and for the following reasons, the petition for writ of habeas corpus is denied.

Count 1 alleges that the plea was involuntary.   In a case in which the petitioner alleges his plea was involuntary and he fails to move to withdraw the plea or raise the voluntariness on direct appeal, the petitioner must show cause and prejudice for the failure to invoke those other remedies.

See, particularly, Bowers v. Commissioner of Correction, 33 Conn.App. 449, at 450-51.   The Court explains-the Appellate Court explains-that was a 1994 decision.   This Court strongly disfavors collateral attacks upon judgments because such belated litigation undermines the important principle of finality;  therefore, we will review the claim only where the petitioner demonstrates, essentially, cause and prejudice.

Some of the cases cited by the respondent do deal with attacks on the canvass, and there, obviously, it's possible to appeal;  but nonetheless, cases such as Bowers and others, possibly Fernandez v. Commissioner of Correction, 96 Conn.App. 251, at 264-65, 2006, seem to go beyond just the claim that the canvass was insufficient and make the claim that the plea was involuntary.

Even then, the Appellate Court has said that you do have to appeal.   If you don't, then you have to show cause and prejudice, which really just gets you into the next count anyways;  because in his return, the petitioner did allege that the cause or at least a cause of a procedural default was ineffective assistance of counsel.

But since-for reasons I will detail, I do not find ineffective assistance of counsel.   I do not find cause for the procedural default, and therefore, I am denying relief on Count 1.

Count 2 gets to the main issue in the case, which is ineffective assistance of counsel, and I think counsel are correct in characterizing the case as, essentially, a credibility dispute.

In general, in all material respects, I credit the testimony of Attorney Louis Martocchio.   I found his testimony to be clear, honest, and in some respects, very impressive.   I think he had a very unusual situation whereby he was urging his client to continue to litigate the case or at least investigate it, and counsel-then his client wanted to plead guilty and get it over with.

This is something that I think counsel would remember, and it's unlikely that Mr. Martocchio was dead wrong about where he stood and where the petitioner stood in this case, which would be the case if you credited the petitioner's testimony.

Furthermore, there is documentary evidence of the positions of the attorney and client in Respondent's Exhibit A, which when translated into English reveals that the petitioner agreed that he was going against the advice of counsel and that the petitioner did not want to continue the case.   This is-that's something he signed to, and it's fully documented.

In contrast, the petitioner's testimony-to me-made in some material respects no sense at all.   It's unbelievable that Mr. Martocchio, an experienced attorney, would advise him that he's already been found guilty.   The case is over-or whatever finality supposedly counsel conveyed to the petitioner-and that now he just had to plead guilty in court.   He had no options, and he just had to go into court and do what the judge suggests he do.

This sort of testimony is unbelievable to me.   Counsel would be grossly derelict if he advised his client to do that;  and I am not persuaded that that was the case, so in general, I credit Mr. Martocchio's testimony.

As to the specific claims, I will review them.   The first is that counsel did not advise the petitioner that he had the ability to challenge the arrest and search warrants prior to pleading guilty.   I'm looking at Count 2 of the revised petition.

I credit Mr. Martocchio's testimony that he did advise that he could contest the search, perhaps nothing that he could have contested on the arrest;  but he did advise him he could contest the search although I know of-in any event, from the record that we have, I know of nothing that was really subject to-subject to a valid motion to suppress the search based on a warrant.

I haven't seen the warrants, but I did hear that it was based on confidential informant information, controlled buys, and it doesn't appear-at least from the limited information I have-that there was anything that could be done.

Nonetheless, counsel did advise him that he would at least explore that, and I credit his testimony to that extent.   So he did advise the petitioner on possible challenges to the warrants.

The second claim is that trial counsel did not adequately advise the petitioner that he was not, in fact, presumed guilty.   He could challenge the prosecution.

I know the petitioner is not from this country;  but it's a universal notion in this country that one charged with a crime is presumed innocent, not presumed guilty.   And it's possible that the petitioner didn't understand that, but most people-I think-in this country understand that when they're charged with a crime, they're presumed innocent rather than presumed guilty;  so it's a little hard to accept the petitioner's testimony in that respect.

In any event, I credit Mr. Martocchio's testimony that he did advise the petitioner that he could challenge the prosecution;  that there was no need to plead guilty;  that he was not guilty at that point.

As a matter of fact, Mr. Martocchio implored the petitioner not to plead guilty.   Exhibit A demonstrates that contrary to the advice that Mr. Martocchio gave him, the petitioner wanted to plead guilty, not Mr. Martocchio.

The canvass, which is Exhibit 1, reveals several things.   On Page 1, the Court advises the petitioner that he could have a hearing in probable cause to determine if there was probable cause to continue the prosecution of this matter.

On Page 2, the petitioner is asked, To the charge, do you plead guilty or not guilty?   He was given a choice.

On Page 7 of the transcript, the Court advises the petitioner, By entering your plea today, you've given up your right to remain silent and to continue to plead not guilty.   So the Court clearly advised the petitioner that he could continue to plead not guilty;  so the petitioner was well-aware of that.

So I find that counsel adequately advised the petitioner with regard to (b), and that in any event, the petitioner was aware of his rights.

(c) is that trial counsel did not adequately advise the petitioner that he had options other than to accept the plea offer of twenty-two years.   This is similar to the previous claim, and I would rely on the same portions of the transcript that show that in addition to what Mr. Martocchio said, the Court explained to the petitioner that he could continue the prosecution of this case.

But I also credit Mr. Martocchio's testimony that he explained his options to the petitioner, but it was the petitioner who insisted on going ahead, against Mr. Martocchio's advice.

I will add that on Page 8 of the transcript, again the Court reminds the petitioner that by pleading guilty, he's giving up a right that he has to have a trial and to present defenses.

Petitioner also said no one forced or threatened him in any way into pleading guilty.   The Court found that the plea was voluntarily entered, and neither attorney saw any reason not to make that finding;  so the evidence at the time was that the petitioner was making his own choice based on full advice from the Court and petitioner's counsel.

(d) is that trial counsel did not adequately advise the petitioner he could seek to withdraw his plea of guilty prior to sentencing.   There's really no evidence on this point, and there really was perhaps almost-most minimal opportunity to withdraw the plea between the time it was accepted and sentencing, which occurred within the same minute.

But there was no reason for counsel to advise him that he could withdraw the plea during that minute because they had just finished entering it.   It was found to be voluntary, and counsel had given him proper advice as to his options.   And petitioner was aware that the plea and sentencing were going to occur at the same time, so there would be no reason to advise him of the right to withdraw his plea.

The trial judge did advise petitioner that after today, you can't come back and change your mind, thus, at least implying that he could still change his mind today, which he chose not to do.

The final claim is one that has been added today by way of amendment, that counsel did not adequately advise the petitioner of immigration consequences of his plea.   I credit Mr. Martocchio's testimony that he did so advise the petitioner of immigration consequences.

In any event, the Court inquired on that very subject, and that's on Page-I know I just cited it-Page 8 of the transcript.   And the petitioner indicated that he understood that, and he was made aware of it by the Court.   So the petitioner was fully advised of the immigration consequences of his plea.

So in general, this is not a case in which the trial counsel gave poor advice or failed to give advice.   It's rather one in which counsel gave the petitioner reasonable and proper advice, but the petitioner just refused to accept it and now refuses to acknowledge it.

For those reasons, the petition for writ of habeas corpus is denied.

ATTY. GRIFFIN:  Judge, can I just-

THE COURT:  Yes;  correction?

ATTY. GRIFFIN:  It's a point of articulation-

THE COURT:  Yes, sir.

ATTY. GRIFFIN:-if  I might.   As to Count 1, the Court ruled that the petitioner was procedurally defaulted.

THE COURT:  Right.

ATTY. GRIFFIN:  But in light of the Court's ruling as to Count 2, is it accurate to infer that the Court in the alternative finds that-even arguing in the alternative, absent procedural default, that the plea was entered voluntarily?

THE COURT:  Oh;  I see.   Yes, it is.   So I will clarify that, that in addition-I'm obligated by the case law to address procedural default first.

But I will, in addition, find that the plea was voluntarily entered based on adequate advice of counsel that I've reviewed and proper canvass and all of the evidence in the case.

ATTY. GRIFFIN:  Thank you.

ATTY. BHATT:  And I also have a point of clarification-

THE COURT:  Go ahead, sir.

ATTY. BHATT:-of  articulation, oral motion-

THE COURT:  Yes, sir.

ATTY. BHATT:-if  the Court would entertain it.   The procedural default issue-which I think has now been rendered moot by this last Court's ruling.

But did you find procedural default here for failing to appeal or failing to seek to withdraw his plea within-I guess, as the Court put it-that one minute between plea and sentencing?

THE COURT:  I-to be realistic, I don't think he could have withdrawn his plea, so it would be a failure to appeal.

ATTY. BHATT:  Failure to appeal?

THE COURT:  But as I explained, that's kind of a preliminary finding.   The real question is, was there cause and prejudice?   If there had been ineffective assistance of counsel, then that would be a valid cause, and procedural default would be excused.

I find that there was no ineffective assistance of counsel-therefore, no cause for the procedural default-and deny relief on that ground, as well as the alternative ground, that I think the plea was voluntary.

ATTY. BHATT:  Thank you.

THE COURT:  And the petitioner is entitled to be advised of his right to appeal.

ATTY. BHATT:  And if I may actually have him just sign-

THE COURT:  Yes.

ATTY. BHATT:-the  forms now.

THE COURT:  All right.   So I'll order a transcript of the decision.

(The matter was concluded, and court was adjourned.)

Carl J Schuman, Superior Court Judge

Schuman, Carl J., J.