John Tabone v. Warden (2011)

APPEARANCES

THE COURT:  All right.   Let the record reflect that both counsel and the petitioner are again present.   You can have the exhibits back I was reviewing, as well as another copy of the amended petition, and did we manage to get the other documents submitted with appropriate redactions?

ATTY. SEDENSKY:  Yes, Your Honor.   I did show opposing counsel.

THE COURT:  You did?   Attorney Ledford, you're okay with those?

ATTY. LEDFORD:  Yes.

THE COURT:  My understanding this was essentially a redaction for the victim's name;  is that correct?

ATTY. LEDFORD:  That's correct.

THE COURT:  All right.   Very good.

Okay. First of all, I want to start by commending counsel for the work they've done on this case.   It's always a pleasure to walk into a courtroom and find lawyers who are, A, prepared, and B, advocates for their respective clients.   I think you accorded yourselves well.   I think it's my first time with both of you on trial, and certainly I would look forward to the opportunity to have both of you back here again.

I have considered all of the evidence in this case, the testimony, the exhibits that were admitted and as well the arguments that were made to the Court at the conclusion of your respective presentations.

I do all of that to arrive at the facts I'm going to find, and then I apply the law to the facts.   In order to arrive at the facts, because there's also conflicting evidence, I have to make credibility determinations, and, obviously, I did all of that in this case.

I would have to acknowledge that in many respects I did not find the petitioner to be credible.   I found that there were some inconsistencies in what he's testified to today and what the transcripts say at the time he entered his plea regarding his knowledge and understanding of what was going on and so on and so forth, but there also were inconsistencies with other witnesses as well as what I would consider to be logic, logical inconsistencies, and I think a good example of that, and, actually, a key example was his testimony that in connection with his decision to enter this plea, there was a discussion about the structuring of the sentence to which he actually wound up pleading.

Attorney Harrigan indicates that's not the case.   Attorney Harrigan said he wouldn't know what the structure was.   What he knew when he sat down with the petitioner was you're going to plead to these charges, and this is going to be your total effective sentence, and having sat for four years in Part A in Hartford and negotiated as the presiding judge many of these types of agreements, that's typically the way these things happen.

The issue isn't so much an issue of how to structure the sentence as it is what is the defendant going to plead to and what is the total effective sentence.   Those are what the petitioner or defendant in a criminal case wants to know.   What am I pleading to, and how much time am I going to get, and I find that the suggestion of discussion regarding sentence structuring and so on, I don't believe it existed, and neither—and Attorney Harrigan doesn't suggest that it does either.

Before the Court is what amounts to a one-count petition at this point in time, and that count relates to the alleged ineffective assistance provided by habeas counsel in connection with the petitioner's first habeas back in '01 or '02.   That was Attorney Fox who was the habeas counsel.

There was also a second count in the amended petition.   That was dismissed by Judge Fuger, and it dealt with the original trial counsel's alleged ineffectiveness, so the only thing before me is the question of the effectiveness of habeas counsel.

As we all know, the issues before the Court are framed by the allegations in the petition.   In this case, the petitioner alleged that Attorney Fox was ineffective for not raising the claim that his trial lawyer pleaded him guilty to an illegal sentence, and that is the extent of the claims that are made against Attorney Fox, at least according to the amended petition that's before the Court.

That brings me to the applicable standard that I have to apply in deciding these types of cases.   That's governed, of course, by Strickland versus Washington, which is a United States Supreme Court case, but one which has pretty much been adopted by our courts here in Connecticut, and the Court there said that the claim must be supported by evidence establishing first, counsel's representation fell below an objective standard of reasonableness, and two, counsel's deficient performance prejudiced the defendant because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for that deficient performance.

The Court has told us that the first prong is satisfied by proving that counsel made errors that were so serious that he really wasn't functioning as the counsel that is guaranteed by the Sixth Amendment.

The second prong is satisfied if it is demonstrated that there exists a reasonable probability that but for counsel's unprofessional errors, the result of the proceedings would have been different.

We know that the issue of ineffective assistance doesn't stop with the performance of trial counsel, but extends as well to the performance of habeas counsel, and that standard again requires the petitioner to demonstrate that habeas counsel's performance was ineffective and that this ineffectiveness prejudiced the petitioner's prior habeas corpus proceeding.

As the Court said in Lozada versus Warden, a petitioner who is claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of trial counsel really needs to satisfy Strickland twice, which is certainly why Attorney Ledford addressed both the ineffectiveness issues involving both Attorney Harrigan and Attorney Fox.

In other words, that he has to prove that both his appointed habeas counsel was ineffective, applying both prongs, and, secondly, that his trial counsel was ineffective again involving both prongs, and, finally, there's an overlay here, and that's the overlay which arises when the conviction is based upon a guilty plea, because under Hill, the petitioner bears the further burden of establishing that but for counsel's error or errors, he wouldn't have pleaded guilty.   He would have elected to go to trial, and he would have obtained a better result.

So those are the standards.   I don't think there's any dispute as to what the applicable law is, and that's how I have to decide this case.

I think it's important to understand what this case is not.   This is not a case where we have a one-count information that defendant is misled into believing that it's a Class B felony and told that he's exposed to twenty years when in fact it's a Class C felony, and he winds up doing a deal for ten years because a Class C felony, as we all know, carries a maximum sentence of ten years, and that type of a plea agreement would be illusory because he's pleading to the maximum sentence he could get under the information.

That is not this case.   What this case involves is statute of two levels, first, the original charge level where the defendant was confronted with four Class B felonies and two risk of injury charges, the total exposure for which involved a hundred years.

Now, when he ultimately pled, he pled to one of the risk of injuries, but he did not plead to any sex or sexual assault in the first degree, each of which would have carried a mandatory ten-year sentence, nor did he plead to the other risk of injury charge.   Secondly, when he did plead, this is not a plea on one information or one count.   He pled to three counts.

So while the issue may arise, as it did, as to whether or not the second sexual assault in the second degree could support the sentence which was imposed by Judge Damiani, I don't believe there's any genuine question that all three of the charges combined could support that sentence.   And to the extent that one might find that there was an inability to impose a ten-year period of special parole, the fact of the matter is is that on resentencing, the petitioner wound up with nine years of special parole, and the Court's obligation in sentencing pursuant to an agreement is either meet the agreement or sentence less, just can't sentence more.   So the petitioner wound up with a lesser sentence than that to which he actually agreed.

Having said that, let's talk, I want to talk again about the issues that I have to deal with under the standards that I've mentioned earlier.   First of all, there's an issue of deficient performance.   Do I believe that there was deficient performance by either counsel in this case?   All of the claims regarding deficient performance are predicated on the Supreme Court subsequent decision in the first Tabone case, which would be 279 Conn. 527, a 2006 case.

That case established I guess that this one component of the petitioner's sentence was illegal, but prior to that time, prior to the rendition of that decision, it was not apparent previously.   There were conflicting statutes, which the Court had to try to reconcile, and when I say it wasn't apparent prior to that time, it wasn't apparent to Attorney Harrigan.   It wasn't apparent to Attorney and now Judge Eschuck, and it wasn't apparent to Judge Damiani, and, quite frankly, even after the issue was brought to Judge Damiani's attention in 2004 on the motion to correct an illegal sentence, even then, it was his opinion that the sentence that he imposed was a legal sentence.

The level of performance that's required of trial counsel is one which involves an objective standard, was the performance of trial counsel reasonable at the time and under the circumstances and not in retrospect in light of what we knew as of 2006 when the first Tabone case was decided.   I do not agree, with all due respect to Attorney Ledford, who I have a high regard for, that a subsequent decision by the Supreme Court ipso facto makes trial counsel's performance deficient.   I don't think that's the case.   Because if that's the case, we're going to have a lot of incompetent lawyers running around who were incompetent lawyers because they didn't predict what the Supreme Court or the Appellate Court was going to say on a given issue.

I think, going back to what's expected of trial counsel, I think that the lawyers in this case, both Attorney Fox and trial counsel, Attorney Harrigan, met that standard.

That's—on that basis alone, the Court could deny this petition, but I think even more importantly, and the Court can proceed on either, I'm proceeding on all bases because I want it to be clear how I feel about all these issues, is the prejudice prong, and that is is it reasonably probable that but for counsel's errors, the results of the proceeding would have been different.

I'm going to take it at both levels.   Let's look at it from the perspective of the trial level, okay?   Would the result have been different at the trial level?

The state had a strong case.

Attorney Harrigan certainly felt that it was a strong case.   That's why he made the recommendation that he did.   The state not only had the testimony of the victim who had been viewed on videotape by counsel and the social worker and by Mr. Tabone, but it also had Mr. Tabone's own statements that were signed by—at least allegedly signed by him.   I know he takes issue with the fact that he signed, but even disregarding the alleged written and signed confession, according to Attorney Harrigan, at a minimum, the defendant's state—the petitioner's statements to him acknowledged responsibility for both risks of injury and possibly a sexual assault in the third degree.

So that would have put the defendant in the unenviable position of having to sit there during this trial, listen to the victim and then either get up and admit facts which would have supported those convictions or not testify at all, which may, in the long run, been detrimental to him if the case went to the jury.   I don't know because I wasn't there for the original trial.

What I will say, however, based upon what I know about the case through the evidence presented and based upon the opinion of Attorney Harrigan, I do believe the state had a strong case in this case.

Looking at it from the plea perspective, the issue, and I think I certainly highlighted this in my questioning of the first witness, Attorney—you're going to have to help me here.

ATTY. LEDFORD:  Liskov.

THE COURT:  Yes. I said that's the issue, I mean, and I think in large part it is the issue.   The defendant went into this courtroom with an expectation, and facing a hundred years, that he was going to get a sentence of ten years to serve and ten years of special parole.   That was his expectation going in, and what happened was exactly what he expected.   He got ten years to serve and ten years of special parole.

As we sit here now, we know it improved because of the recommendations or suggestions of the Supreme Court, Justice Katz, it's now ten years to serve and nine years special parole, but I do not believe that structure was a critical component of that sentence.   The Supreme Court made that clear.

In the second case, at 292 Connecticut 417, specifically in footnote twenty-three where they relied on the Miranda decision which talks about the aggregate theory of sentencing, and what they essentially said is this is just one little component of a sentence, of an overall sentence which the Court intended to impose.   We're going to let the Court go back and impose the sentence which it felt under the circumstances was appropriate.

Since Judge Damiani presumably was part and parcel of the plea process, indicating that he would give the defendant ten years to serve and ten years special parole, it came as no great shock that he tried to derive a further sentence which comported with what had been agreed to, and that's what he tried to do before the second Tabone case came, and it's certainly what he tried to do as a result of the suggestions that were made in that case by Justice Katz in the fashioning of a sentence, but the idea of aggregate sentencing where you have one block built on another to take to your total effective sentence, isn't just a theory.   It's not just set out in Miranda, but if you look at Judge Damiani's decision in 2004 where he denied the motion to correct an illegal sentence, he actually says that.   He says we had plenty of charges here.   We could have given him a little bit on this and a little bit on that, so he clearly intended to use the sentencing structure that he used to get to one final result, which was ten years to serve with ten years of special parole, and I don't think there was any magic with respect to the charges that the defendant pled to other than the fact that he couldn't plead to the sexual assault in the first degree because of the mandatory minimum ten years.   I don't think there was any magic to how the time and special parole was apportioned as long as it was done in a legal way, and we are at a point where it's done in a legal way, but there were no surprises that happened in terms of what the petitioner's realistic expectation was based upon the deal that he made.

So at the end of day, the petitioner wound up with the very deal that he negotiated for, and I don't find that there's any prejudice in that.

I also find that there's really no prejudice from the defendant's or petitioner's perspective either because as he said, he was going to plead no matter what to get the trial over.   He didn't want to do the trial.

Now, Judge Damiani's transcript of the original plea process doesn't suggest that petitioner was motivated solely by a desire to get the trial over because in that plea, the defendant himself said if he didn't plead, more time was coming, so I don't think it was a question of not wanting to have to sit through a trial or getting meds.   I think he knew that he faced a lot more time.

And with respect to Attorney Harrigan, he said that while the fact that the petitioner wanted his meds, that was not the motivating factor for him in terms of making the decision to enter this plea.

I don't believe it was fear of trial.   I think it was fear, based upon everything I heard, of the consequences of a trial.   He knew if he went to trial, and he knew if he lost at a trial that the idea of getting only ten years to serve was going to be a whole lot better than anything that he might have gotten after a trial, and quite frankly, and I can only fall back on anecdotal evidence from my experience in Part A and the experience of other judges in Part A, generally, a sexual assault on a six-year-old child is going to carry a very significant sentence, and I believe in this case, had the defendant been found guilty of sexually assaulting a six-year-old child, ten years would have been far less than what a sentencing judge would have imposed otherwise.

That brings us to the Hill aspect of this, and that was that it was a guilty plea, and the question arising but for the errors of counsel, would the defendant not have pleaded guilty, chosen to go to trial and been more successful or gotten a more favorable result at trial.

Would he have gone to trial?   Well, I guess the first point I would make is that he was at trial.   I mean he was ready to go.   They were picking a jury, and if he really wanted his trial, that was the time to do it.   He chose in the midst of jury selection to say I want to do a deal where I get ten years and ten years special parole.

He was facing, as I said before, a hundred years with a mandatory of ten on each of the four sexual assault in the first degree counts.   I said before it was a strong case in my opinion.   Attorney Harrigan said he felt it was a strong case, which is why I think he was happy to have gotten the original deal back since usually there's a surcharge if you come back on the eve of trial where the original deal is no longer available.   I think Attorney Harrigan was glad to get that back, and the defendant took it.

So I do not believe that the petitioner was going to go to trial where he had a deal for a lesser charge with jail time amounting to ten percent of the exposure that he had if he was found guilty at trial.

In addition, apart from the fact of the question would he have gone to trial, which I think he would not have, based upon everything I know, would he have fared better at trial?   Again, that's just an assessment of the strength of the state's case.

Attorney Harrigan thought it was a strong case.   I think from reading from the transcript the plea process it looked like a strong case.   We've got a written confession bearing what is purported to be the petitioner's signature.   He denies that, but I suspect, based upon the testimony of Harrigan, Attorney Harrigan, that he thought that a motion to suppress was going to be an uphill battle, to say the least, and even that aside, the petitioner's own statements to his own counsel suggest to this Court, strongly suggest to this Court that the petitioner would not have fared better at a trial.   In fact, I think he would have fared considerably worse.

I think this was a very, very fair disposition given the strength of the state's case.   I think there was a glitch with respect to the issue of sentencing on the sexual assault in the second degree, but I don't think it's a glitch which in any way at the end of the day demonstrates that the petitioner was prejudiced because he got the deal he negotiated for, and the charges that he pleaded to supported that sentence or something less.

Accordingly, the defendant has failed to meet the performance prong.   He's failed to meet the prejudice prong, and he's failed to satisfy the Court with respect to the issue of Hill, and, therefore, the petition is denied.

I'm going to order a transcript of this, which will serve as my judgment in this matter, and I will sign that transcript when it's ready.

Elliot N. Solomon, J.

Any questions from the petitioner?

ATTY. LEDFORD:  No, Your Honor.

THE COURT:  Respondent?

ATTY. SEDENSKY:  No, Your Honor.

THE COURT:  All right.   We're adjourned.   What? Oh.

THE CLERK:  May the record reflect that the marshal has given counsel and petitioner copies of the petition for certification, and would you order a judgment file be done by the petitioner's counsel within thirty days?

THE COURT:  So ordered.

THE CLERK:  Thank you.

THE COURT:  Okay. Thank you all.

(Whereupon, court was adjourned.)

Solomon, Elliot N., J.