Mitchell Ribeiro v. Warden, State Prison (2011)

MEMORANDUM OF DECISION

The petitioner, Mitchell Ribeiro, seeks habeas corpus relief in the nature of the vacating of his guilty pleas, entered at the Stamford Judicial District on February 2, 2007, to charges of Larceny Second Degree, in violation of General Statutes § 53a–123;  and Criminal Possession of a Weapon, in violation of General Statutes § 53a–217(A)(1);  and an admission of a violation of probation.   The petitioner received sentences of three years, two years, and nine months, all consecutive, respectively, for a total, effective sentence of five years and nine months incarceration, as well as seven years of special parole.

The bases for the petitioner's claim to relief is that his trial attorney, Dennis Murphy, rendered ineffective assistance by improperly advising the petitioner that he would be eligible for parole after serving fifty percent of the recommended sentence and he would have fifteen months pretrial confinement credit applied to this sentence.

Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims.  Johnson v. Commissioner, 218 Conn. 403, 425 (1991);  Ostolaza v. Warden, 26 Conn.App. 758, 761 (1992).   The Strickland criteria requires that the petitioner demonstrate, by a preponderance of the evidence, both that his attorney's performance was substandard and that the outcome of the proceedings would have been different.  Id.

As to the performance prong of Strickland, the petitioner must establish that trial counsel's representation fell below an objective standard of reasonableness.  Johnson v. Commissioner, supra.   This standard of reasonableness is measured by prevailing, professional norms.  Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel's conduct from that attorney's perspective at the time of the representation.  Id.

The United States Supreme Court has also set forth the prejudice standard for weighing ineffective assistance claims with respect to the entry of guilty pleas.  Hill v. Lockhart, 474 U.S. 52, 59–60 (1985).   The criterion for the prejudice prong announced in Hill v. Lockhart, supra, was incorporated into our habeas law.  Copas v. Commissioner, 234 Conn. 139, 156–57 (1995).   Under these cases, the habeas petitioner must show that, but for counsel's unprofessional representation, the petitioner would have elected to have a trial rather than plead guilty.  Id.

At the time of his guilty pleas, the petitioner had pending against him five criminal cases, four motor vehicle cases, and a violation of probation accusation.   These files included charges of first degree robbery, conspiracy to first degree robbery, criminal possession of a weapon, risk of injury, and multiple counts of operating a motor vehicle with a suspended license.   The violation of probation followed a previous adjudication of violation of probation arising from an underlying conviction for assault second degree.   The petitioner also had another conviction for assault second degree.

The petitioner alleges that Attorney Murphy was deficient in that he incorrectly told the petitioner that if he pleaded guilty to substituted charges of larceny second degree and criminal possession of a weapon and admitted the violation of probation, in exchange for recommended sentences of three years, two years, and nine months, respectively, he would be eligible for parole after serving fifty percent of the total effective sentence of five years and nine months.   The petitioner avers that, based on this information regarding parole eligibility, he accepted the plea offer.   The court sentenced the petitioner in accordance with the recommended disposition.

After sentencing, the petitioner arrived at the MacDougall–Walker correctional facility and learned that, because the predicate criminal offense for his violation of probation was assault second degree, a violent crime for purposes of General Statutes § 54–125a(b)(2)(B), the petitioner was ineligible for parole until he served eighty-five percent of his sentence.   The petitioner asserts that, had he known of this ineligibility for parole, he would have rejected the plea offer and proceeded to trial.

Attorney Murphy testified at the habeas trial that he never informed the petitioner that the petitioner would definitely be eligible for parole after serving only fifty percent of the agreed sentence.   The court finds Attorney Murphy's testimony on this point to be credible.

The court determines that the real source of the petitioner's misunderstanding regarding parole eligibility was from his own misinterpretation of parole requirements which he inferred from the sentencing of his brother, a coaccused as to some of the charges which the petitioner faced.   The petitioner mistakenly believed that because his brother received concurrent sentences which made him ineligible for parole until his brother served eighty-five percent of his sentence, if his own sentences were consecutive, he would avoid the same fate.   Attorney Murphy neither initiated nor confirmed this opinion, but rather secured the disposition which the petitioner believed would allow for parole after service of fifty percent of his sentence.

Neither the canvassing court nor criminal defense counsel need discuss with the defendant parole eligibility in order for the defendant to enter guilty pleas validly and with effective representation.  Hall v. Commissioner, 124 Conn.App. 778, 784–86 (2010).   It is the case, however, that if counsel provides advice regarding parole eligibility to a client contemplating a guilty plea, that advice must be accurate.  Hernandez v. Commissioner, 82 Conn.App. 701, 709 (2004).

In the present case, the court has found that Attorney Murphy conveyed no opinion to the petitioner that he would definitely attain parole eligibility after service of fifty percent of the recommended sentence if the petitioner pleaded guilty in accordance with the agreement.   The misapprehension was the result of the petitioner's own inaccurate conclusion drawn from the petitioner's knowledge of his brother's situation.   Consequently, the habeas action must be denied on this ground.

Paragraph nine of the second, amended petition alludes to the petitioner's “understanding that he would be credited fifteen months for time served on acceptance of the six months six year offer.”   No credible evidence was adduced that Attorney Murphy informed the petitioner of this supposed credit.   The transcript of the petitioner's guilty pleas and sentencing reveal nothing which suggests that such credit was available or considered with respect to the plea agreement.

For these reasons, the petition is denied.

Sferrazza, J.

Sferrazza, Samuel J., J.