296765 v. Warden, State Prison (2011)

MEMORANDUM OF DECISION

The petitioner, Leonard Best, alleges in his petition for a writ of habeas corpus initially filed on May 18, 2006 and amended on July 13, 2009, that he was denied the effective assistance of counsel at his sentencing hearing.   Consequently, he requests a new sentencing hearing.   For reasons set forth more fully below, the petition is denied.

This matter came to trial on October 13, 2009 and October 29, 2009.   The court heard testimony from the petitioner, Attorney Jonathan Demirjian, his trial counsel, Lorraine Webster Long, his sixth grade teacher, and Joanne Johnson Keene, a former paraprofessional who knew the petitioner when he was in elementary school.   In addition, the petitioner entered into evidence his high school academic records and documents from the Department of Children and Families relating to his adoption.   The respondent entered into evidence the transcript of the petitioner's sentencing hearing and a copy of his presentence investigation report.   The petitioner and the respondent filed posttrial briefs on December 10, 2010 and December 15, 2010, respectively.

FINDINGS OF FACT

The Court has reviewed all of the testimony and evidence and makes the following findings of fact.

1. The petitioner was the defendant in a criminal case in the judicial district of Fairfield under docket number CR04-197440.   He was charged with, inter alia, assault in the first degree in violation of General Statutes § 53a-59(a)(3), criminal possession of a firearm in violation of General Statutes § 53a-217(a)(1) and criminal possession of an assault weapon in violation of General Statutes § 53-202c(a).

2. The factual allegations underlying the charges, as summarized by the prosecutor at the petitioner's sentencing hearing, are as follows:  “[O]n the night of these offenses [the petitioner] was engaged in the act of transporting these weapons.   One of them is an assault weapon switchable to full automatic.   The other was a revolver with the serial number obliterated, clearly so as to keep it untraceable.   He was transporting these weapons from one end of Bridgeport to the south end to some ambiguous personalities based upon the statement that he gave to the police ․ The police were conducting a simple, routine motor vehicle stop.   But, of course, [the petitioner] didn't want to get caught with those weapons ․ So he bolted from the car.   The police, not even knowing he was armed, gave chase.   But before anybody could proceed ten yards [the petitioner] turned ․ [A]ll the officers there clearly saw [the petitioner] turn towards [Officer] Pizarro and saw the flash of the gun.   Saw and heard the gun go off.” 1

3. The petitioner elected a jury trial and proceeded to trial.

4. On March 3, 2005, after two days of evidence, the petitioner pleaded guilty, with no agreement on sentencing, to the charges described above.

5. On May 27, 2005, the court, Comerford, J., sentenced the petitioner to a total effective sentence of twenty-seven years.2

6. The petitioner was represented by Attorney Jonathan Demirjian.   Attorney Demirjian has been a public defender since 1987.   In 1994, he began handling Part A criminal cases.   By 2005, he had tried approximately 75 Part A cases.

7. Additional facts will be discussed as needed.

DISCUSSION

The petitioner alleges in his amended petition that his trial counsel rendered ineffective assistance at his sentencing hearing by failing (1) to secure evidence that he was a “crack baby;” (2) to secure evidence that he was severely malnourished and suffering from, among other things, spinal meningitis, during the first two years of his life;  (3) to secure evidence of the physical abuses he endured growing up;  (4) to secure the in-court statement, at sentencing, of any of his teachers, social workers or religious mentors;  (5) to utilize records of the Department of Children and Families;  (6) to utilize any school records;  and (7) to submit any other form of mitigating evidence.

“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).

A review of the transcript of the petitioner's sentencing hearing demonstrates that Attorney Demirjian did present mitigating evidence on the petitioner's behalf.   He discussed the petitioner's “difficult and rocky start to his life,” mentioning his drug-addicted, biological mother and the fact that he had hepatitis, alcohol fetal syndrome and spinal meningitis as a baby.³  He also informed the court of the petitioner's difficulties in school, his placement in special education classes, his diagnosis of attention deficit hyperactivity disorder and the fact that he saw a psychologist weekly while he was in elementary school.   Additionally, in arguing for leniency, Attorney Demirjian discussed the petitioner's drug problem and highlighted his young age, his expressions of remorse and the fact that he had taken responsibility for his actions.⁴

In addition to Attorney Demirjian's remarks, some members of the petitioner's adopted family addressed the court at his sentencing hearing.   The majority of their remarks could be characterized as counterproductive.⁵  However, Cecilia Best, the petitioner's sister, confirmed a lot of the information provided to the court by Attorney Demirjian, such as the fact that the petitioner's biological mother was a drug addict, that the petitioner had trouble in school and that he had been diagnosed with attention deficit hyperactivity disorder.   She also described the petitioner as loving and expressed her opinion that the “system” had failed her brother.⁶  The petitioner also addressed the court during his sentencing hearing.   He expressed his remorse to the court and to Officer Pizarro and pleaded for a chance to learn from his mistakes.⁷

It is undisputed that Attorney Demirjian did not present any school records or Department of Children and Families records pertaining to the petitioner at the petitioner's sentencing hearing.   It is also undisputed that he did not have any of the petitioner's teachers, social workers or religious mentors speak on the petitioner's behalf and that he did not explicitly discuss the physical abuses that the petitioner suffered as a child.⁸  As described supra, he did, however, present other forms of mitigating evidence, including evidence that the petitioner was a “crack baby” and suffered from spinal meningitis as a baby.   Regardless of whether Attorney Demirjian performed deficiently at the petitioner's sentencing hearing, the petitioner's claims fail because he has not demonstrated that but for Attorney Demirjian's “errors” there is a reasonable probability that the result of the proceeding would have been different, i.e., he would have received a different sentence.   See Corona v. Commissioner of Correction, 123 Conn.App. 347, 354, 1 A.3d 1226, cert. denied, 299 Conn. 901 (2010) (“the petitioner has not met the prejudice prong because he has not demonstrated that his sentence would have been different ․”).

The school records introduced into evidence at the habeas trial consist solely of the petitioner's high school academic records, and they demonstrate that he failed all his classes.⁹  These records substantiate Attorney Demirjian's representation to the court that the petitioner struggled in school and thus, would have merely been cumulative evidence of the petitioner's academic struggles.   Similarly, the records introduced by the petitioner from the Department of Children and Families at the habeas trial basically substantiate Attorney Demirjian's and Cecilia Best's representations to the court that the petitioner's biological mother was a drug addict and that the petitioner was inadequately cared for as a baby.¹⁰  Accordingly, they too would have been merely cumulative evidence, in this instance, of the petitioner's difficult childhood.

The testimony of Long and Keene that the petitioner was a kind and loving child when they knew him in elementary school and that he may have been physically and sexually abused at home would not have been cumulative evidence.   However, based on the fact that the petitioner had been in and out of jail before and on the remarks made by the court when it imposed its sentence, it is unlikely their testimony would have made a difference in the sentence imposed.   Any mitigating effect that a difficult childhood or a person who like the petitioner has had numerous opportunities to reform.   Keene testified at the habeas trial that she would have asked the judge if he believed in second chances;  however, this would have been closer to the petitioner's third or fourth chance.   The petitioner's presentence investigation report indicates that he had three prior felonies.¹¹  In fact, in imposing the sentence that it did, the court referenced the petitioner's “rather lengthy criminal history” and the fact that “[a]ny kind of rehabilitative effort here thus far [had] failed.” ¹²  It also considered the protection of the common good and emphasized the serious nature of the offense, stating:  “I spent a lot of time as a Part A trial judge in Bridgeport, in New Haven, and in Stamford.   There aren't many more serious than this one.   But for the grace of God you'd have a dead police officer on your hands.   No question in my mind.   During the time of trial when this CAD tape was introduced I sat there and listened to it.   It was chilling.   Absolutely chilling.   Two men in a car doing their job that they do every day.   Simple motor vehicle violation.   Simple stop.   Just a check.   Those two men get out of their patrol cars and within seconds one of them is shot.   The partner of Officer Pizarro thought he was dead.   He went down, bang just like that.   I thought he was dead.   Absolutely chilling.   Frightening.” ¹³

Based upon the above, there is no reasonable probability that any additional mitigation evidence that Attorney Demirjian could have presented at the petitioner's sentencing hearing would have made a difference in the sentence imposed.   The court was very troubled by the serious nature of the offense. regardless of how rough the petitioner's childhood may have been, as articulated by Officer Pizarro at the petitioner's sentencing hearing, after fleeing from the car, the petitioner “turned around and depressed the trigger of a Mach-11, which is capable of discharging all thirty rounds.” ¹⁴  Fortunately, the gun misfed and only fired one round.   However, as noted by the court, Officer Pizarro could have easily been killed.

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. Respondent's Exhibit [Exh.] B, p. 7-9..  FN1. Respondent's Exhibit [Exh.] B, p. 7-9.

FN2. Respondent's Exh. B, p. 43..  FN2. Respondent's Exh. B, p. 43.

FN3. Respondent's Exh. B, pp. 13-14..  FN3. Respondent's Exh. B, pp. 13-14.

FN4. Respondent's Exh. B, pp. 14-19..  FN4. Respondent's Exh. B, pp. 14-19.

FN5. See Respondent's Exh. B, pp. 25-31 (remarks from the petitioner's adopted father, Reverend Paul Best, and his sister-in-law, Lisa Best, suggesting that the petitioner was not responsible for shooting and injuring Officer Pizarro)..  FN5. See Respondent's Exh. B, pp. 25-31 (remarks from the petitioner's adopted father, Reverend Paul Best, and his sister-in-law, Lisa Best, suggesting that the petitioner was not responsible for shooting and injuring Officer Pizarro).

FN6. Respondent's Exh. B, pp. 20-21..  FN6. Respondent's Exh. B, pp. 20-21.

FN7. Respondent's Exh. B, pp. 34-37..  FN7. Respondent's Exh. B, pp. 34-37.

FN8. The petitioner testified at the habeas trial that he got beat and abused by his adopted family and that at the age of twelve he was molested by the preacher's aide and by a friend of the family.   However, in his presentence investigation report, the petitioner indicates that his childhood was “good” and that his adopted parents took care of him.   Respondent's Exh. A, p. 4. Similarly, at his sentencing hearing, after acknowledging he was likely “going to do a long time,” the petitioner told the court that he owed it to his adopted parents to “get back home to them and take care of them the way they took care of [him].”   Respondent's Exh. B, p. 34..  FN8. The petitioner testified at the habeas trial that he got beat and abused by his adopted family and that at the age of twelve he was molested by the preacher's aide and by a friend of the family.   However, in his presentence investigation report, the petitioner indicates that his childhood was “good” and that his adopted parents took care of him.   Respondent's Exh. A, p. 4. Similarly, at his sentencing hearing, after acknowledging he was likely “going to do a long time,” the petitioner told the court that he owed it to his adopted parents to “get back home to them and take care of them the way they took care of [him].”   Respondent's Exh. B, p. 34.

FN9. Petitioner's Exhs. 2, 3 and 4..  FN9. Petitioner's Exhs. 2, 3 and 4.

FN10. Petitioner's Exh. 1 (the records indicate that the petitioner was hospitalized due to meningitis)..  FN10. Petitioner's Exh. 1 (the records indicate that the petitioner was hospitalized due to meningitis).

FN11. Respondent's Exh. A, p. 3. It is also worth noting that the petitioner committed the present offense while he was on transitional supervision before his probation from a prior offense began..  FN11. Respondent's Exh. A, p. 3. It is also worth noting that the petitioner committed the present offense while he was on transitional supervision before his probation from a prior offense began.

FN12. Respondent's Exh. B, pp. 40, 42..  FN12. Respondent's Exh. B, pp. 40, 42.

FN13. Respondent's Exh. B, p. 38..  FN13. Respondent's Exh. B, p. 38.

FN14. Respondent's Exh. B, p. 11..  FN14. Respondent's Exh. B, p. 11.

Santos, Thelma A., J.