Anthony Orr v. Warden, State Prison (2011)

HABEAS DECISION

DECISION

THE COURT:  All right.   I've read all of the exhibits, I've reviewed my notes of the testimony of the two witnesses today and I am prepared to rule.

This is a claim of, a one-count claim of ineffective assistance of counsel.   The claims are set forth in paragraph six of the amended petition and there are four, although the first two are essentially a claim that the petitioner was coerced to enter into his guilty plea by Attorney Keeney, and that was the ineffective assistance that Attorney Keeney provided, he coerced Mr. Orr. The third claim is that Attorney Keeney did not review the court's canvass with the petitioner prior to the pleas, and the final claim is that Attorney Keeney did not make the petitioner aware of the elements of the offenses prior to the plea.

Now, because this is a habeas proceeding as opposed to a criminal proceeding, the defendant, or the petitioner is not entitled to a presumption of innocence and it is the petitioner's burden to prove his claim of ineffective assistance of counsel and there are two things that the petitioner must prove in order to meet his burden.

First, he must prove that the counsel, Attorney Keeney's performance was deficient, and, second, he must prove that as a result of that, the petitioner was prejudiced by the deficient performance.   That's obviously the standards set forth in Strickland v. Washington, 466 U.S. 668 in 1984.

In this case, because it's a guilty plea, the standard is modified by the Supreme Court's decision in Hill v. Lockhart, 474 U.S. 52 at page 59.   That's a 1985 decision.   And when it's a guilty plea the petitioner must show not only the performance was deficient, but in terms of prejudice, that had the performance been what it should have been, he would have not pled guilty, gone to trial and obtained a better result.   And that's what the court said in Hill v. Lockhart and that's what other courts within Connecticut have said.

I mentioned two of the decisions earlier, Cotto v. Warden, which is Docket Number CV08–4002169, a July 19th, 2010 decision by Judge Fuger, and then Gray v. Warden, which is Docket Number CV09–4003222, a September 28, 2010 decision by Judge Schuman and, in particular, Judge Schuman said that the reason for the rule that you have to show you would have done better at trial is that the petitioner is not truly prejudiced unless there is a reasonable probability that he would achieve some measure of success at trial.

So that's the standard which I have to apply in deciding, one, whether there was a deficient performance by Attorney Keeney, and then, two, whether Mr. Orr was prejudiced.

With respect to the deficient performance, I have reviewed the exhibits and there is no evidence presented of any coercion by Attorney Keeney.   He acknowledged during his testimony that he can have a strong personality and can strongly advocate what he believes in his client's best interest, but when you look at the exhibits it shows that everything was fully explained to Mr. Orr.

Exhibit One, which is the agreement, says on the first page that it's the entire plea agreement being entered;  that the max is 25 years that he could receive and that any sentence is in the sole discretion of the trial judge.   It does say that the max that is being offered is 12 years, execution will be suspended after eight years, followed by five years of probation.   The defendant shall have the right to argue for a lesser sentence.

There is no mention anywhere in the written plea agreement of a promise of a five-year sentence to Mr. Orr, and on page four of the plea agreement in paragraph 16, it says, “The defendant acknowledges that no other promises, agreements or conditions have been entered into other than those set forth in this agreement and none will be entered into unless set forth in writing signed by all the parties.

Right below that is where Mr. Orr started to initial the various statements.   He initialed first that he had an opportunity to adequately discuss the case with the state ․ discuss the case the state has against him with his attorney.   He indicated he understands the nature of the charges and potential penalties that might be imposed if I were convicted of any or of all of those crimes.   He then acknowledged all the rights he was giving up by entering the plea.   He acknowledged that he has read, or he had read and discussed the terms of the cooperation agreement with his attorney, and that is consistent with Attorney Keeney's testimony that he met with Mr. Orr ahead of time.   It is also consistent with Mr. Orr's testimony that he discussed pleading as an accessory to the crime with Attorney Keeney, and as I will discuss in a short period, pleading to the accessory to the robbery one is no different than pleading guilty to the robbery one.   The exposure's the same.   Your liability as an accessory is the same as someone who was standing there with the gun in their hand pulling the trigger of the gun.

The acknowledgements by the petitioner goes on to say that he has carefully considered all the provisions set forth in the agreement, goes on again to say he was advised of and understands the nature of the charges and the mandatory maximum, or the mandatory minimum sentence and the statutory maximum sentences, the minimum and maximum for each of the matters he's pleading guilty for.   He acknowledges he's satisfied with the advice and assistance he's received from his attorneys and he also goes on to say, confirms again there are no other terms or agreements except those contained herein.   He not only initials all that, he then signed the plea agreement.   That was on November 24th, 2008.

Later on November 24th of 2008, the petitioner appeared before Judge Thim and was canvassed by Judge Thim in a thorough canvass regarding the plea that he was entering.

Attorney Corradino again confirmed that the proposed agreement or the recommendation was 12 suspended after eight and then acknowledged that the one-year minimum was not included in the plea agreement and was set forth in the canvass before Judge Thim.

Attorney Keeney confirmed that he explained the minimum mandatory to his client.   Mr. Orr then entered straight guilty pleas to both charges.   He then indicated that he was happy with his attorney, had reviewed everything with him and felt that Attorney Keeney had done all he could for him.

He did this after answering other questions, where he provided information to the judge about his date of birth, then talked about his high school graduation, where he worked.   He clearly was listening to the judge and responding to all of the questions asked and indicated an understanding to all of those questions.

At page four he indicated that he had time to go over the agreement with Mr. Keeney.

At page five he acknowledged that Mr. Keeney had explained the essential elements and the potential penalties for each charge.

At page six he confirmed that there was no other promise, and significantly on page six, starting at line 12, Judge Thim asked him:

“Are you pleading guilty because you are guilty;  is that correct, sir?”

And Mr. Orr said, “Yes.”

Attorney Corradino then recounted the facts and pointed out that the gun that was discovered in Mr. Orr's possession matched the gun that was used in the robbery, the shell casing was a ballistic match, which Mr. Orr confirmed here on the witness stand today.

Mr. Corradino then said that there was no representation as to what the court, what sentence the court would actually impose.

Then the court asked Mr. Orr:

“Do you wish to add anything to what Mr. Corradino has said with respect to the facts or correct anything that he has said, sir?”

After hearing the facts as set forth by Mr. Corradino and after hearing Mr. Corradino say that there was no representation as to the sentence the court will impose, Mr. Orr said, “No,” he did not want to correct any of the facts or say anything with respect to the facts.

Judge Thim then asked about the persistent offender possibility, as is now required by statute, and Attorney Corradino explained why the state was not going forward and pressing that, in light of Mr. Orr's resolution of the case and his cooperation, taking that exposure out of the case.

Then a significant exchange occurred on page nine of the transcript.   As the court was making its findings as to the knowing and voluntary waiver of the rights and the plea, Mr. Orr asked, “Can I have a moment?”

Then after the judge made those findings, he asked:

“Now, Mr. Orr, before we conclude, do you have any questions about the proceedings today?”

Mr. Orr asked, “Can I have a moment?”

It appears that Mr. Orr then conferred with Attorney Keeney, and Attorney Keeney then asked the court, “Would the court consider taking these pleas under the Alford doctrine?”—which I draw a reasonable inference that what happened was Attorney ․ Mr. Orr asked Attorney Keeney about a possible plea under the Alford doctrine.

The judge then said, “I thought this was a straight plea.”

And Attorney Keeney said, “It is a straight plea.”   Mr. Orr then no longer asked about pleading other than through a straight plea.

The court, to confirm that Mr. Orr understood what he was doing, then asked at page ten:

“You admit your involvement in the Crown Chicken robbery;  is that correct, sir?”

And Mr. Orr answered, “Yes.”

Based on that transcript, there is little doubt that Mr. Orr understood exactly what he was pleading guilty to, understood it was a straight plea and understood he was pleading guilty to the robbery.

His involvement in the robbery was confirmed by him on two other occasions.

First, in the presentence investigation, Exhibit A, it states on page three, “Orr stated, among other things, that he, Frank Gonzalez and Jordan Thompson were with one another when they decided to rob someone.   Orr stated that he thought they were going to rob a drug dealer, not the Crown Chicken.   He stated that he gave them his gun, a black .22 caliber, and they exited the vehicle while he waited.   He stated that Gonzalez and Thompson returned, gave him the gun back and sixty dollars from the robbery.   Mr. Orr claimed he did not know they had robbed the Crown Chicken until approximately one hour later.”

Nonetheless, though, Mr. Orr admitted to the probation officer his involvement in the robbery.   Again, giving the gun to your co-conspirator or your accessory, the other people committing it, makes you a part of the robbery as if you went in and took the money from the people themselves.

This was further confirmed by Mr. Orr when he was sentenced by Judge Thim on February 19th, 2009.   He admitted that he gave the gun to his cohorts for the commission of the robbery, but he said, “I wasn't the one who actually did the robbery.”

So Judge Thim knew exactly at the time of the sentencing what Mr. Orr's involvement was in the case.   The PSI set forth Mr. Orr's involvement.   Mr. Orr told Judge Thim what his involvement was.   There was no misunderstanding whatsoever and the judge sentenced Mr. Orr consistent with the agreement that Mr. Orr entered, which was a cap of 12 after eight with a right to argue for less.   That's what he agreed to.

There was nothing ever set forth in any document about a five-year.   It may have been what Attorney Keeney was hoping for.   It may have been what Attorney Keeney thought the judge would do, but what a trial attorney thinks a judge will do is not the same as a judge committing to what he will do, and there was no agreement on a five-year sentence anywhere set forth here.

So the court finds that Attorney Keeney did not coerce, that there is insufficient evidence presented by the petitioner that he was coerced by Attorney Keeney, there is insufficient evidence by the petitioner that he would ․ that the elements of the crime and the maximum minimum sentences were not reviewed with him and there is insufficient evidence by the petitioner that he was not made aware of the elements of the offenses, or that ․ I'm sorry, that the judge ․ that Attorney Keeney did not review the court's canvass with the petitioner prior to the pleas.   In fact, the written agreement and all of the initials that were set forth by Attorney ․ by Mr. Orr is essentially the same thing that Judge Thim canvassed him on.

So I find that the petitioner has not met the first prong under Strickland, but let me move to the second prong, because even if you did meet the first prong under Strickland, you haven't met the second prong, which is prejudice.

In order to meet the prejudice, you would have to show, number one, that you would have not entered a guilty plea had all of these other things happened, and I don't believe there's any such evidence of that because you were fully informed of all information.   But, two, even if you wouldn't have entered the guilty plea, you've presented no evidence that you would have done any better at trial.   There was no evidence submitted that the evidence at trial would not have linked you to this crime in such a way as you would have been found not guilty.

THE PETITIONER:  Could I have a word?

THE COURT:  Yes.

THE PETITIONER:  In the situation that they're bringing up—

ATTY. PATEL:  Can I have an opportunity to talk to him, Your Honor?

THE COURT:  Go ahead.  (The petitioner speaks with his attorney.)

THE COURT:  Mr. Orr, is there anything you wanted to say?

ATTY. PATEL:  Thank you, Your Honor.

THE PETITIONER:  No.

THE COURT:  So you would have to show that you would have gone to trial and done better at trial.   There was no evidence presented that had you gone to trial, you somehow would have been exonerated of these crimes.   In fact, all of the evidence submitted to me shows that you would have been found guilty as an accessory to the crime;  that it was your gun that was provided to these people, you've admitted it a number of times, and the ballistics was a match.   And it's your burden.   As I mentioned, at this stage in this proceeding there is no presumption of innocence.   You have to prove to me that there's a reasonable possibility that had you gone to trial you would have prevailed.   You've presented no evidence, no witnesses that would have come in to testify to support such a claim.

Mr. Orr, is there something—

THE PETITIONER:  Yes. A few things, Your Honor.   Thank you for—

ATTY. PATEL:  Your Honor, I just want to make sure that ․ I have advised him not to speak, so he's doing it against my advice.

THE PETITIONER:  Yes, I am.

THE COURT:  Okay. All right.   Go ahead, Mr. Orr.

THE PETITIONER:  Your Honor, during the process of going through everything, especially here today, the first thing I wanted to say, being convicted of robbery and accessory is two different things on paper, and then if I went with the trial in my situation, there is a witness that I had made Mr. Patel aware of that had chased the two guys to the car, because my co-defendants put me at the car, and the witness chased the two guys to the car, only seen the two guys in the car.

Furthermore, I had ․ when I gave my statement I was high on cocaine, and I had told Attorney Keeney this and Attorney Patel, and that statement was made under ․ under my intoxication, and that's the only reason that statement exists.

But as far as with the accessory and conspiracy, there is a witness that chased the two guys to the car, and that's where I'm being placed at.

THE COURT:  First of all, there was no evidence of that, which is I need to have the witness actually come in.   But even if you presented that witness and even if I accepted all of that, the evidence showed it was your gun and you've admitted that you gave the gun to these two men.

The purpose of the habeas petition is to see whether your liberty interest has been prejudiced because of some mistake made by your trial attorney.   Your liberty interest hasn't be prejudiced because if you did no more, if you were sitting at home in your apartment when this crime was committed, but you gave these two individuals a gun, knowing that they were going to commit a robbery, which is what you've admitted to in the presentence investigation report and at your sentencing and was confirmed by the ballistics, you would have the same liability, as they would under 53a–8b, which says, “A person who sells, delivers or provides any firearm, as defined in subdivision 19 of section 53a–3, to another person to engage in conduct which constitutes an offense, knowing or under circumstances in which he should know that such other person intends to use such firearm in such conduct, shall be criminally liable for such conduct and shall be prosecuted and punished as if he were the principal offender.”

So the sentence that you received and you were exposed to was the same.   Merely, once you provided the gun to those two individuals, your exposure was the same as if you were in the Crown Chicken with them robbing it.   Whether you were sitting in your apartment, in your car, at the movies, it didn't matter.   You had committed the crime at that point and, therefore, because of that, you can't show any prejudice to anything that Attorney Keeney did.

Yes?

THE PETITIONER:  Your Honor, thank you for letting me have another word.

In doing my legal research, I came across a defense to liability.   It's called a mistake of fact.   And you don't have the original police report and my co-defendant's statement and my original statement.

In my original statement and my co-defendant's statement at the time of the situation, there was an agreement to rob a drug dealer.

THE COURT:  It doesn't matter who you robbed.   That doesn't matter.   It's no excuse to say, “Look, we were robbing a guy who was committing a crime, so it's not as bad as robbing people in a Crown Chicken.”   An armed robbery is an armed robbery.

THE PETITIONER:  I'm not trying to make an excuse for it, but under a mistake of fact, my mental state was for something totally opposite.   I would never agree to rob this store, and under a mistake of fact I should be entitled to that defense.

THE COURT:  All right.   Well, that's not an issue that's been raised in this habeas petition, first of all.   This is the first time that I'm hearing it.   But, second, I think legally you're wrong on that.

In any event, there is no prejudice because you provided ․ you admitted to being a conspirator, you admitted to being an accessory to the crime.   You were willing to plead guilty to being an accessory or being a co-conspirator to the crime, and if you're willing to enter those pleas, you were exposing yourself to the same sentence and same exposure that you received in this case, and when Judge Thim sentenced you, he had your position on that, that you only provided the gun and weren't actually in the store.   That's what you said in the PSI, that's what you told him.   He took that into account.

So I don't see any prejudice to you even if I were to find Attorney Keeney to have provided deficient performance, which I don't find.

So, for those reasons, the petition is denied.

THE PETITIONER:  Thank you.

THE COURT:  All right.   The respondent will prepare a judgment file within thirty days.

ATTY. EISENMAN:  The respondent?

THE COURT:  Or the petitioner will prepare ․ sorry.

ATTY. PATEL:  Your Honor, can I have an opportunity to spend five minutes with him?

THE COURT:  Sure.

ATTY. EISENMAN:  Did Your Honor wish to address the procedural default defense that was raised?

THE COURT:  I'm not going to address the procedural default defense because I don't think it's necessary for me to address it in light of this and in light of the fact that, for the reasons we discussed earlier, under Johnson, because it's an ineffective assistance of counsel claim, the analysis of the procedural default is somewhat circular, and because I'm making the finding that there was no ineffective assistance of counsel, then the procedural default issue becomes somewhat moot.

So I'm just making the finding that there was no ineffective assistance of counsel, that the performance was not deficient and there was no prejudice in any event.

ATTY. PATEL:  Your Honor, can he remain for a while because he has to sign something?

THE COURT:  Sure.

ATTY. PATEL:  Okay.

THE COURT:  Mr. Orr, we're going to provide you with notices of appeal so you can fill that out.   We'll provide it both to you and Attorney Patel so you can complete that.

THE CLERK:  Also, are you ordering a transcript for a memorandum of decision?

THE COURT:  Yes, yes.

THE CLERK:  Thank you.

THE COURT:  And we'll stand in recess.

* * *

Bright, J.

Bright, William H., J.