Herminio Sotomayor v. Warden, State Prison (2011)

HABEAS DECISION

DECISION

THE COURT:  I have considered all of the testimony and the exhibits and the arguments of counsel and for the following reasons that I will detail, the petition for a writ of habeas corpus is denied.

The procedural history of this case is, quite frankly, somewhat embarrassing to our judicial system.   The petitioner was convicted in 1999.   His conviction was affirmed in 2002.   He brought this habeas petition in 2007, alleging ineffective assistance of counsel concerning his trial counsel Public Defender David Abbamonte.   In the meantime, Mr. Abbamonte died.

Notwithstanding the obvious prejudice to the state, or apparently obvious prejudice to the state in defending this late petition, the state has failed to allege laches.   The state has simply dropped the ball in this case.   Nonetheless, I must consider it on the merits, and I have.

The petitioner testified essentially that counsel only visited ․ in a murder case, in which he's facing a maximum of sixty years, counsel only visited him about three times, said, “There's nothing we can do for you”;  that counsel never talked to the petitioner about the witnesses or the trial;  that he never conveyed any offers to the petitioner;  that the petitioner claimed he did not know what a plea bargain is;  that counsel never prepared the petitioner for his testimony or met with him prior to sentencing.

All this is simply incredible.   This would have been a gross dereliction of counsel's job, but too much time has passed for the petitioner to remember accurately what counsel did and said;  either that, or the petitioner's memory has become very selective.   In either event, the court does not credit the petitioner's testimony in that regard.

The first claim is that no pre-trial offer was conveyed to the petitioner by defense counsel.   There is no evidence in this trial of any pre-trial offers made by the state in this case and, therefore, there was nothing that petitioner's counsel was obligated to convey to the petitioner.   So the first claim is denied for lack of any evidence.

The claim emphasized really during this trial and during closing argument is that counsel was ineffective at sentencing.

I think this claim, to a certain extent, misunderstands the court's role at sentencing.   Having done a few myself, I think I can explain what the court's role is.

The trial judge has a duty to consider all factors relevant to sentencing brought to his or her attention, regardless of how much counsel emphasizes them.   So the trial judge has a duty to consider all mitigating and aggravating factors of which the court is aware, and the court, having usually experience in these matters, is capable of assessing their importance even if counsel doesn't emphasize them.

Another factor that the court considers in sentencing after a trial is that the court has presided over the trial and heard the testimony in graphic detail and inevitably forms an impression of the gravity of the offense and of the defendant's conduct from the testimony at trial.

Finally, the court must consider not only any mitigating factors of which it is aware, but the court must consider aggravating factors.   The court must consider the impact on the victim and the victim's family and the court must consider the state's interest in deterrence and punishment of crime.

Probably the two most important factors in sentencing are the offense conduct itself and the defendant's criminal record.   Of course, the court must consider all other factors as well.

Here, in this case, clearly the petitioner's counsel, Mr. Abbamonte, could have been longer in his sentencing remarks, but we must be careful in evaluating the effectiveness of counsel that we do not attempt to second guess his strategy or evaluate it with the benefit of twenty-twenty hindsight.

As the Supreme Court said in Strickland, a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight to reconstruct the circumstances of counsel's challenged conduct and to evaluate the conduct from counsel's perspective at the time.

Here, in this case, petitioner's counsel, Mr. Abbamonte, in fact, had very little to work with.   The petitioner denied responsibility for this offense at trial.

In the petitioner's testimony at trial, on direct he's asked the following questions and provides the following answers:

“You have heard the case here against you, haven't you?”

“Answer:  Yes.”

“Did you shoot and kill that young man?”

“Answer:  No, sir.”

“Question:  Were you out there on the date where he was killed?”

“Answer:  No, sir.”

The petitioner completely denied complete or any responsibility for this offense at trial and at sentencing showed no remorse whatsoever.

There was no significant evidence of mitigation introduced in this trial that counsel should have brought out at the time of sentencing.   Some of the material referred to by Mr. Roberts and in argument by petitioner's counsel was, in fact-that supposedly should have been gathered, was, in fact, brought out.

The PSI, for example, states that the petitioner stayed in school only till the eighth grade;  that he repeated sixth grade;  he had a poor history of academic performance and that he took special education classes, and the trial judge had read the PSI.

The PSI mentions the petitioner's youth.   Mr. Abbamonte mentions this at sentencing.   The state's attorney mentions the petitioner's youth, and it is an obvious factor to consider.

The PSI finds no mental health history.   The PSI states that the petitioner is fully literate, can adequately respond to questions and appeared to be within general range of intellectual functioning.   The trial judge found the same based on his trial testimony, so it is unlikely that any contrary information could be found or would be persuasive.

In any event, the petitioner in this case has introduced none.   There is no evidence of a mental defect that would have impaired the petitioner's judgment on the day of this murder in 1989.

The PSI also reports that the petitioner had only briefly experimented with marijuana when he was 12 or 13, and that the petitioner maintains his Christian background and is against the use of illegal drugs.

In regard to alcohol consumption in the PSI, the defendant denied having any significant problems with alcohol, indicating that he was a social drinker.

When confronted, or when this information was highlighted by Mr. Abbamonte, the court responded, “That's good,” and I fully understand the court's reaction.

Showing that this was untrue and that there actually was a substance abuse history, if, in fact, there was, would more likely have hurt than helped.   The court would much rather see someone before it who has resisted the temptation to abuse drugs than someone who has succumbed to temptation, violated the law daily and committed the antisocial acts that are traditionally associated with drug use.

So I certainly see no ineffective assistance in petitioner's counsel highlighting what was in the PSI rather than searching for evidence of substance abuse.   Certainly, again, there's no evidence of substance abuse at the time of the incident that would have been a mitigating factor for this murder.

As the PSI brings out, the petitioner had a criminal record, although it apparently arose after the incident, after the murder, but he did have a criminal record for failure to appear and carrying a pistol without a permit, and that's certainly an aggravating factor that the court has to consider.

Finally, as mentioned ․ perhaps not finally, but as stated, the offense conduct itself is a vitally important factor that the court considers in sentencing.   This murder was brutal and callous.   As the PSI brings out, the petitioner chased down and shot a 17-year-old boy simply because the boy had thrown eggs at the petitioner's car.   The petitioner shot the victim eight times, which revealed to the trial judge, as he stated, the petitioner's real cowardice and barbarity.   The petitioner stopped shooting only because he ran out of bullets.

As the prosecutor stated at sentencing, the petitioner's actions were senseless and grossly disproportionate.

Quote, “He hunted down the victim and killed him in cold blood.”

The PSI reveals that the petitioner carried his gun everywhere, which reveals his defiant attitude.

The PSI also reveals that the victim's family wanted the maximum sentence.   They were devastated by the loss of their 17-year-old family member.   One of the siblings had to attend counseling as a result.

The PSI states the victim's mother requested the court to impose the fullest amount allowable at the time of sentencing.   She expressed frustration that she believed the defendant was hiding for eight or nine years.   She went on to explain, “It destroyed our whole family.”   She concluded her interview with the officer by indicating, “I just want the max.   I don't want him on the street.”   The trial judge obviously had to consider that.

As the prosecutor stated at sentencing, the petitioner denied responsibility for this offense and showed no remorse.

Of course, the trial judge should have considered the petitioner's mother's statement and it was in the PSI, although, unfortunately, regrettably, she now denies making.   I say regrettably because I think it's an eloquent statement on the petitioner's behalf.

The petitioner's mother commented, “I couldn't believe this happened.   He's a good kid.   I raised him by myself.   He missed his father.   There is something good inside him.   I hope the judge will show mercy.   He was only 16.”

To me, that's a wonderful argument on the petitioner's behalf and, again, it's unfortunate that the petitioner's mother now disclaims even telling the probation officer that, but I am going to rely on the contemporaneous evidence, the evidence from 1999, and that evidence is in the PSI.

I'm also going to rely on the fact that Mr. Abbamonte at the time stated, “I believe his mother wants to address the court.”

The court responds on page 15 of the transcript, “His mother does?”

“MR. ABAMONTE:  Yes. Gloria Garcia is his mother.   Apparently, she, too, is too overwrought to address the court at this time, but she is here in the courtroom.”

I'm going to rely on the contemporaneous evidence from 1999 as to the explanation for the mother's decision not to make comments at the time of sentencing rather than the explanation offered eleven years later.   But, as I said, the trial judge had the PSI to consider and there is a very moving and telling statement from the petitioner's mother in the PSI.

Ultimately ․ Oh, Mr. Abbamonte does also point out the petitioner's lack of a significant record, which is probably true-he did have a record, but it wasn't long, and that he had ․ and that the petitioner had some work record.

So, again, I believe that Mr. Abbamonte had very little to work with, but performed reasonably as defense counsel and that certainly there's been no showing that he did not render effective assistance of counsel.

After discussion of all these factors, the presentence investigation, which a court also relies on heavily, recommends an extended period of incarceration.

Considering all the evidence in this case, there is no reason to believe that anything that an expert could have raised in assisting defense counsel, or defense counsel on his own, or any other mitigation evidence would likely have, or creates a reasonable probability that the sentence in this case, when one considers all the facts and factors that a trial judge has to consider, would have changed the sentence of fifty years.

Therefore, the petition for a writ of habeas corpus is denied.

I'll order the court reporter to produce a transcript of the court's decision for counsel.   I'll order that petitioner produce a judgment file within thirty days and I'll order that petitioner be advised of his right to appeal the decision.

Schuman, J.

Schuman, Carl J., J.