Axel Deleon v. Warden, State Prison (2011)

COURT DECISION

THE COURT:  All right.   We are back on the record regarding Mr. Axel Deleon versus the Warden.   And I, firstly, want to indicate prior to rendering this ruling, I want thank counsel for an orderly presentation of the case and assure Mr. Deleon that the shortness, literally a half day in terms of evidence, of this proceeding is in no way reflective of the seriousness that I know you approach this with or certainly the seriousness with which Mr. Bhatt, your attorney, approaches this with.

I'm aware, and you may not be, that before Mr. Bhatt's present assignment he was in the Habeas Corpus Unit of the Office of the Public Defender and was here quite frequently as a lawyer on behalf of petitioners.   For much of that time I was not here as a judge, but there was a short period where that did overlap.   So I know Mr. Bhatt to be one of those attorneys particularly knowledgeable in this area.

And by the same token, I do appreciate, with regard to the respondent, that counsel for the respondent, and the respondent as well knows, and views this very seriously.   So I do want to assure all parties that the Court has read through the entirety of the exhibits a number of times, and reviewed all of the case law cited by both parties, both verbally and in writing.   I did review each of the cases cited by Mr. Bhatt in his presentation and closing argument, and also reviewed additional case law not cited, in reaching my findings.

With regard to this matter, the Court heard testimony today from a number of witnesses, firstly, testimony from the petitioner himself, Mr. Deleon, and also testimony from the petitioner's wife, Ruth Deleon.   In addition, the Court heard testimony from Mr. Deleon's former attorney, Mr. Bond, and heard testimony from Officer—pardon me—I believe his name was Crique (phonetic) or something—

ATTY. BHATT:  Cricco.

ATTY. GROSSO:  Cricco.

THE COURT:—to  that effect—pardon me—from the haRtford poLice dePartment.   All right.   With regard to this case, the Court does make the following findings.   On a prior occasion, Mr. Axel Deleon was arrested in the matter of State versus Axel Deleon in the Judicial District of Hartford on case number CR02564164.

On presentment in that court, he was represented by the Office of the Public Defender.   He was arraigned on or about September 17, 2002.   Thereafter, his case was transferred to the Part A Court in Hartford on October 1 of that same year.   On or about October 15, 2002, Mr. Deleon was presented in the Part A Court in Hartford, whereupon, he entered pleas of not guilty to a number of offenses,including three counts of sexual assault in the first degree in violation of Connecticut General Statute Section 53a–70, and three counts of risk of injury to a minor in violation of Connecticut General Statute Section 53–21.   The state, at some point, presented a substitute information in a docket number ending CR—with a docket number ending, I should say, 564160 to one count of risk of injury to a minor.

On or about November 18, 2002, Attorney Anthony J. Siciliano was admitted as counsel for Mr. Deleon pro hac vice along with Attorney Bond from Somers, Connecticut.   The Court finds that on diverse dates from the appearance of Attorneys Siciliano and Bond, both counsel discussed the strengths and weaknesses of the state's case with their client, Mr. Deleon.   This Court finds that defense counsel together availed themselves of all relevant documents and supporting reports respecting the arrest of Mr. Deleon.

It is clear from the testimony and the records in evidence, particularly Respondent's C, which is purported to be a certified copy of a judgment file regarding Mr. Deleon.   A cursory review of that document reflects a number of pretrial court dates following the entry of the not guilty pleas for, essentially, diverse dates from the fall of 2002 through the spring, and indeed, the beginning of the summer of 2003.

This Court finds, also based upon the review of the transcripts and the comments in evidence in Respondent's A and B, which, essentially, firstly, A being the change of plea proceeding on March 24, '04, and then the sentencing June 30th, '04, that there were a number of conferences with defense counsel and representatives of the prosecution and a number of judges and, indeed, the Court shortened the period where there was actual pretrial conferences.   I think I referenced a date in '03, but it's clear, that the case was actually pending from the fall of '02 through the sentencing of June of '04.   So that's a considerably long period of time during which there was discussion between representatives for Mr. Deleon and representatives for the prosecution.

This Court does find that as a result of numerous pretrial discussions that are referenced in the transcripts, and to some extent touched upon by Attorney Bond, the issue of a potential jurisdictional defect was discussed and brought up in chambers with at least one judge, Judge Elliot Solomon, and potentially other jurists who had occasion to review this matter.   It was not until October 7 of '03, that counsel for the petitioner actually filed a motion to dismiss, or what is captioned a memorandum of law in support of a motion to dismiss.

In the motion, in a very general sense, the then defendant, through his attorneys, attacks the jurisdiction of the Court, essentially, arguing staleness as a result of the allegations made by the minor complainant, who was at the time of the conduct alleged to have occurred, the petitioner's stepdaughter through marriage.   The allegations concern offenses with diverse dates from June 8th, 1991 to June 26th, 1992.

This Court finds that an arrest warrant was sought and obtained subsequently in approximately 19—excuse me—from the year 2000—strike that.   Suffice to say, an arrest warrant was obtained.   This Court also finds that for a period of time Mr. Deleon resided in Connecticut and—strike that—Mr.   Deleon resided in Massachusetts, in Springfield.   He traveled to a number of locations.

According to his testimony, which the Court accredits, from the years 1996 through the year 2002, Mr. Deleon was outside of Connecticut and, indeed, he may have remained outside of Connecticut for a greater time prior to 1996.   It's not clear to this Court the exact date of his departure.   Various dates were testified to.   Counsel approach for a second.   Off the record.

(At which time, the court briefly went off the record.)

THE COURT:  All right.   Back on the record.   The Court, in review of the testimony, which admittedly this Court finds confusing in that for a period of time, to a large extent at the end of the 90's and the beginning of the 2000 decade, the petitioner remained out of state in Massachusetts, California, and Florida.   And this Court finds that for the most part he was certainly outside of the state of Connecticut from 1996 to 2002 and resided out of state during that period.

In essence, however, the motion to dismiss sought to attack the staleness of the facts alleged in the warrant application, and the lawyers for Mr. Deleon argued, among other grounds, a denial of due process and all of the problems that attend the passage of time, the unavailability of certain witnesses, in particular a DCF employee, Department of Children and Families, who may have been involved in some type of purported allegation by the complainant.

And also a police officer from Hartford who was no longer employed with the Hartford Police Department and that officer might be able to provide information about the attempts, or lack thereof, on an issue involving service of the warrant on Mr. Deleon.

The petitioner claimed prejudice, thereby, and sought to dismiss the prosecution in its entirety as a result of what he termed constitutional deprivation of his rights.   The arrest warrant was apparently served in September 2002, approximately eight years after the warrant was originally issued.   What's clear, and this Court accredits the testimony of Attorney Bond, that counsel sought to gain advantage for Mr. Deleon, their client, by virtue of this potential issue of jurisdictional defect and that was the reason counsel filed the motion to dismiss.

This Court opines that, to some extent, the argument advanced by the petitioner had the attention of the prosecution and the prosecution's representative at the time of the plea proceeding and also sentencing, Mr. Edward Narus, appreciated the points brought out by the defendant.   It's clear, and this Court so finds, that there was never a hearing on the motion to dismiss, hence, the Court never had occasion to rule on the validity of any of the claims advanced by the petitioner.

This Court, however, does accredit the statements attributed to ASA Narus, particularly at the time of change of plea as evident in Exhibit A, proceedings of March 24, where, after the Court notes in the plea canvass prior to accepting the nolo plea and, therefore, entering a finding of guilty on the one count of risk of injury to a minor in violation of 53–21, the Court, the Honorable Douglas S. Lavine, commented at line 21, page 23 of Respondent's A in the course of colloquy with Mr. Deleon, (as read)

All right.   I understand there's a defense motion that was not yet acted upon, which challenges the ability or the jurisdiction of the state or the Court.

MR. NARUS:  Right.   And that's what I was alluding to.

THE COURT:  Yes.

And Narus goes on at the top of page 24 of Petitioner's A:.

“There was a delay and counsel was—had filed that suggesting that that could be proceeding upon that could either—that could go either way I suppose.   And if we're up—If it were to go against the state there would be no disposition because the prosecution would be terminated at that point in time.

THE COURT:  All right.

NARUS at line 9 on page 24:  So weighing all of those factors and the vagaries of going to trial I think they feel that at least this accomplishes some justice and I think that's what counsel and I have sort of presented to Judge Solomon and obtained his acquiescence toward this disposition.

Significantly, at that point the Court chimes in:

“Okay. Anything you want to add on that point?”   To which Mr. Siciliano states:

“No, Your Honor, just that I agree with the way Mr. Narus has portrayed the case, at least as far as our discussions go and as far as the potential resolution I think satisfies the state's very legitimate concern in protecting individuals and also Mr. Deleon to be under the state's supervision for the next five years with conditions as deemed appropriate.   But it also, I think, allows Mr. Deleon to feel that, you know, his rights were protected with respect to the procedures employed by this case and that this resolution is a disposition that he can certainly accept and that's my understanding of it.”

Mr. Narus earlier at page 22 of the change of plea proceeding notes that the prosecution has been in touch with both the mother and the victim, and that no one is particularly happy about the disposition, but they consent to the disposition and Narus explains at line 16 of page 22 when talking about his conferences with the victim and the family, quote, “We did explain to them the ramifications of the delay in prosecution and how that could affect our ability to go forward and present evidence that might result in a conviction, and the lack of, also, any police apprehension of Mr. Deleon prior to 2002.

Be that as it may, I think they're practical and realize that potentiality we might not have anything to show for our case.   At the same time, they realize that if we were to ever go to trial and present a case, the victim and the mother were willing to testify, and felt that that would be appropriate as, you know, as a disposition, however it would turnout, and Mr. Deleon could, in fact, receive a substantial incarceration.”

And I recall that it was represented that the state had done some checking with the Hartford Police and there was an absence of records, but nonetheless, the state would've been willing to go forward, if necessary, and argue the merits of the motion to dismiss.

Suffice to say, in this case, the petitioner has advanced a claim of ineffective assistance of counsel and before reaching the claim and analysis of it the Court would state further that upon presentment on the substitute information on March 24, '04, the petitioner, indeed, had a change of plea and pleaded no contest and the Court made a finding of guilty to the offense of risk of injury to a minor in violation of Connecticut General Statute 53–21.   Again, that was Judge Lavine.

In exchange for that, the petitioner was sentenced to a term of imprisonment for a period of ten years, execution suspended, placed on probation for a five-year period with conditions, which significantly did not include sexual offender registration.

Of note is the factual basis which this Court will take time to briefly summarize as Mr. Narus, the prosecutor, summarizes, at page 3 of the proceedings on March 24 of '04.   Had the case proceeded to trial, the state would've attempted to prove that back in 1991 and 1992, on at least the three dates specified in the substitute information, the petitioner sexually had contact with the minor victim.   At the time of the plea the victim was approximately twenty-one or twenty-two.   And as was noted in testimony today, her mother ceased the relationship with the defendant, the petitioner, and the petitioner thereafter married Ruth Deleon, whom the Court has heard from today.

Had the case proceeded to trial, the state would've established through testimony and evidence that the defendant/petitioner, forced the minor victim to perform various sexual acts upon him, and also attempted or did, in fact, enter and penetrate the female victim in violation of statute.   It was the victim's contention that this type of conduct occurred over numerous dates, not just the three dates specified, and she could not recall the particular dates.   Indeed, she claimed that some of the conduct occurred in Holyoke, Massachusetts.

Suffice to say, the allegations were serious and if the petitioner had proceeded to trial and were convicted, indeed, the petitioner faced exposure upwards of sixty years state's prison, as well as other conditions.

This Court accredits the testimony of Attorney Bond that, in essence, it was a tactical decision, although Mr. Bond did not use that term, to use the pendency of the motion to dismiss as leverage in attempting to, in essence, exact the best deal possible for his client.   And here, as this Court noted in questioning of counsel during closing, in this Court's view the disposition was a favorable one to Mr. Deleon inasmuch as it was a fully suspended sentence, albeit, to a serious felony offense with significant probation.

On the other hand, this Court knows that if Mr. Deleon had proceeded to trial, required the prosecution to put forth the victim and testimony post-conviction after a trial by jury, clearly the petitioner would've faced a sentence somewhere from thirteen to fifty years, realistically, incarceration.

And so in looking at this case, this Court makes a tacit finding that the attorneys, and Attorney Bond in particular, did have occasion to discuss the strengths and weaknesses of the case with his client, and that his client understood the gravity and seriousness of the charges.   Frankly, this Court heard testimony from Mr. Deleon today and to accredit Mr. Deleon's testimony would not be appropriate where in large part Mr. Deleon was not able to recall the lawyers discussing much of anything with Mr. Deleon, nor an understanding of all of the circumstances surrounding this prosecution.   Therefore, the Court does not accredit Mr. Deleon's testimony in regard to the depth of conversation and advice given him by his attorneys.

This Court tacitly does not accredit the testimony of Mr. Deleon that Mr. Siciliano told Mr. Deleon that a Court had, in Mr. Deleon's words, declined and denied the motion to dismiss.   If that testimony were to be accredited, it certainly flies in the face of the logical inference to be derived from the proceedings on March 24, wherein, Judge Lavine referenced a pending motion that had not yet been decided.

And if that was not clear in identifying which motion the Court was referring to, the follow-up comments by Mr. Narus talking about the dispositive nature of the motion would give any individual a fair inference that it was, indeed, the motion to dismiss as opposed to some other motion, an omnibus discovery motion, or motion for bill of particulars, or some other motion.

As well, this Court, although it heard the testimony of Ruth Deleon, frankly, finds a degree of bias with Mrs. Ruth Deleon and does not accredit Ruth Deleon's testimony particularly with regard to her testimony that an attorney refused to show a copy of the motion to dismiss to her.   That practice defies logic in light of the fact that Ms. Deleon—Mrs.   Deleon was present in court for the March 24 change of plea proceedings, indeed, the sentencing proceeding that followed in June of that same year.

Upon questioning by the Court, the Court recalls the testimony I believe of Mr. Deleon that no one within several years following the entry of the plea, and it may have been three years, the period the Court used, had ever raised any issue about the motion to dismiss, action thereon, or any of the consequences associated with the filing of that motion.   No one had raised any issue.

If the Court were to accredit the testimony of Mr. Deleon that he didn't—he believed that the motion had been denied and based on that advice he entered the plea of guilty, or the testimony of Mrs. Deleon that she did not understand that the motion was, indeed, not acted upon, or that an attorney refused to show her the motion, that certainly is logically inconsistent with the proceedings of March 24.   Logic would, as the respondent's counsel has argued, suggest that someone would've said stop, halt, something's not right here, we want to withdraw the plea.   There would've been some type of disruption, something to cease the plea proceedings from being completed.

And what's more, there was nothing done between March 24 of '04 to the date of sentencing on June 30, some three months later.   So there certainly was a three-month period within which Mr. Deleon could've voiced exception, Mrs. Deleon could've voiced exception to Mr. Deleon proceeding in accordance with the remarks on the record on March 24.

This Court knows anecdotally, but is not—and is not considering this for evidentiary purposes, but it is not unusual for motions to be filed and not acted upon and for plea bargains to be struck prior to the formal acting on motions.   The fact that a motion to suppress may be pending or a dispositive motion, such as a motion to dismiss, may be pending and not yet ruled upon does throw into play a degree of vagary, to use the term Mr. Narus used, which can inure, as this Court so finds, to the petitioner's benefit at the time of sentencing.

With regard to this action, the petitioner sets forth a claim of ineffective assistance of counsel by way of the amended return dated October 13, 2009.   Count 1 alleges ineffective assistance of counsel, both Mr. Siciliano and Mr. Bond. The petitioner claims that his incarceration is illegal because it is violative of both his constitutional rights, vis-a-vis, the Connecticut Constitution and the United States Constitution.   This claim, as in all claims of ineffective assistance of counsel, are certainly reviewed under the case of Strickland versus Washington, which requires the petitioner to establish both deficient performance and prejudice in order to prevail.

In addition, this case arises from a plea of guilty and counsel are well aware for ineffectiveness claims resulting from guilty pleas we apply the standard set forth in Hill versus Lockhart, another United States Supreme Court decision which modified Strickland 's prejudice prong.   Therein the Court stated, “To satisfy the prejudice prong, the petitioner must show a reasonable probability that but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.”

The parties are also directed to the attention of the cases of Copas versus Commissioner and Ricks versus Commissioner.   Ricks is 98 Conn.App. 497, a 2007 Connecticut Appellate Court case.

In addition, the petitioner's counsel has argued today that it is incumbent of the petitioner to show that the petitioner, had he not pleaded guilty and proceeded to trial, would likely have had a more favorable outcome.   With regard to this case, the petitioner alleges in Count 1 as follows. 11(a) alleges Attorney Siciliano and Bond were ineffective by informing the petitioner that the motion had been denied, and the Court infers the motion to reference the motion to dismiss.   This Court finds an absence of proof in that regard for reasons stated.

With regard to 11(b), it's alleged that Attorney Siciliano and Bond did not adequately advise the petitioner regarding the likelihood of success in pursuing the motion to dismiss.   This Court finds that claim unproven.   On this particular allegation, the Court accredits the testimony of Attorney Bond that he advised the petitioner that they could win the motion, they could lose the motion, and I'm paraphrasing.

Suffice to say, Attorney Bond said the result was uncertain.   This Court finds that Mr. Bond had a good faith basis for filing the motion.   The Court finds at no time did any attorney guarantee that the defendant would succeed on the motion.   And by the same token this Court makes a finding that no attorney guaranteed that the petitioner would not succeed.   For reasons that I'll get to with respect to Count 2, this Court makes a finding that the plea of guilty was entered to based upon a knowing and full understanding of all of the facts and circumstances, including the pendency of the motion not yet acted upon, and that there was no mistake, there was no fraud, there was no fraud in the inducement by Mr. Deleon in the change of plea.

With regard to the allegation of 11(c), it is alleged that based on either or both of the above, the petitioner was under the impression that he had no viable jurisdictional defense to the prosecution.   This Court finds insufficient basis to rule in the petitioner's favor on that suballegation for the reasons already stated.   The Court notes anecdotally that it's conceivable in the petitioner's mind that he understood the lawyers to have said that a judge may not favor their position and that was a reasonable inference to be made on the part of Mr. Deleon.

This Court finds an absence of deficient performance on the part of either attorney.   It is the petitioner's counsel to prove that part of the claim.   And there is a presumption of competence accorded to the attorneys and there has been insufficient evidence in this proceeding to establish otherwise.   And for that reason, the Court does not find for the petitioner on Count 1.

With regard to Count 2, before the Court gets to Count 2, in this proceeding, the Court views the issue similar to that framed by petitioner's counsel.   It is the petitioner's obligation to establish that if had he not pled guilty, he would likely have had a more favorable outcome.   In so doing, the petitioner here today has offered evidence in part that would be considered perhaps on the underlying motion to dismiss and the petitioner presented testimony of the petitioner's whereabouts for a number of years between 1992 up to the time of his arrest.

The petitioner has offered into evidence testimony about his employment, tax returns, partial tax returns I might add, that he filed along with his wife, to suggest that he was working openly and, therefore, on the public record with respect to the Internal Revenue Service and I believe with respect to a tax return filed in the state of California.

This Court accredits the testimony of Officer Cricco of the Hartford PD that at the time the warrant was made, it in all likelihood was not lodged with the National Crime Information Center, which the Court knows to be a database utilized by individuals in law enforcement, state and federal, which, among other things, lists any outstanding warrants for any individuals.   That database is routinely relied upon by police authorities and law enforcement throughout the country and, indeed, could be accessible to an officer with an onboard laptop.

Without reaching outside the record, but this Court knows that to be the practice when police pull over individuals, obtain their license and registration.   That is customary at this time.   Whether it was, in fact, utilized in '94 is another issue, but to a large extent the NCIC database existed then, laptops came into vogue sometime thereafter.   But the Court does conclude that for some reason inexplicable the pendency of this warrant for Mr. Deleon in all likelihood did not exist on that database, for instance, for any law enforcement person in California or Florida to access.

This Court makes no finding as to the reason for Mr. Deleon absenting himself from Connecticut for the period of time, including 1996 to 2002.   The Court does note in reading the decisions referenced by counsel, in particular Thompson versus Commissioner —strike that—in particular State versus Soldi.   The trial court in that instance, Judge Carroll, apparently neglected to analyze the motion to dismiss in the context of the staleness argument and addressed the issue more in the context of this potential defense of statute of limitations pursuant to 54–193 and 54–193 touches upon this issue of residency.   But this Court does appreciate the difference in the points as I noted at the outset of this ruling.

It's notable in review of the case of Thompson versus Commissioner, before getting to Count 2, and that's 91 Conn.App. 205, a 2005 decision of the Connecticut Appellate Court.   The Court found in that decision that trial counsel's conduct fell below an objective standard of reasonableness by not filing a motion to dismiss under circumstances where there was a delay in the issuance of a warrant and the serving of the warrant.   And if I'm not mistaken, it was some nine years in that case, the warrant in Thompson issued in 1989 and was served in 1980—excuse me—1998.   But very dissimilar to the facts in this case, the petitioner in Thompson to a large extent I believe resided in different towns in Connecticut and lived in Connecticut for the entirety of that period.

He had relocated to a number of municipalities within the time in Connecticut, had gotten arrested no less than fifteen times, and the Court noted in finding an absence of a showing that there was a due diligence in the part of the police to attempt serving the warrant on Mr. Thompson, that their claim that they used due diligence in light of the numerous contacts Mr. Thompson had with law enforcement in that time period flew in the face of that argument.

And that's where the issue of Mr. Deleon's absence from Connecticut becomes relevant.   The police department in Hartford would not have the opportunity to serve the warrant on Mr. Deleon in Connecticut if he was not in Connecticut for that period of time from '96 to 2002, nor does this Court find it unreasonable to think that the Hartford Police Department would not access various tax databases such as the Internal Revenue Service or any particular state tax records authority.

Here, unlike in Thompson, this Court makes a factual finding that the motion to dismiss was, in fact, filed, and for reasons already stated, loomed over the head of the prosecution like a sword, and before any ruling, the defense maximized the mere pendency of that motion.

The Court would be remiss in not remarking that this disposition for Mr. Deleon really in this Court's view amounts to an incredible good result for the defense, although I understand the petitioner is incarcerated by virtue of a violation of probation that attached from the guilty plea.

That being said, based upon the gravity of the allegations, to get a suspended sentence and an absence of lifetime sexual offender registration on the substituted charge is a remarkable accomplishment.   The late Honorable Federal Judge Robert Zampano once commented that when you have a settlement, and in this case this plea agreement is a settlement, it's likely both parties walk away unsatisfied.

Here, the victims clearly walked away unsatisfied and certainly as of the time of the filing of this petition, the petitioner was not satisfied.   If that occurs, Judge Zampano would say then the Court has probably done its job.

More to the point, it is the function of the Court to do justice.   It is the function of advocates to maximize the position of their various parties.   The prosecution obtained a conviction, a significant suspended sentence, which, in fact, resulted in a violation of probation and incarceration.   The petitioner on the other hand was able to gain his liberty by virtue of a plea to a very serious offense and had the opportunity for probation.

With regard to Count 2 of the amended petition, the petitioner claims that his plea was an involuntary plea, and based on that this Court should grant him relief.   And because of the detail of the petitioner's complaint, the Court is going to address each of the suballegations for clarity of the record.   The Court finds this claim to be unproven.   In review of the canvass by Judge Lavine, who at present sits on the Appellate Court, it is clear to this Court that the canvass conducted by the Court on March 24 complies with the Connecticut Practice Book, Connecticut General Statutes, and certainly all aspects of the Connecticut Constitution and United States Constitution.

The Court in a very thorough colloquy with Mr. Deleon made clear that Mr. Deleon was, in fact, pleading guilty to the offense to which he pled, and that he was waiving a number of rights, including his right to remain silent, his right to a trial, his right to present defenses, and that's significant because it's mentioned in several instances and, frankly, more content and depth than is usually addressed.   The usual questions about whether he had time to talk with his lawyers are addressed in the affirmative, whether he had any questions, he was aware of the maximum penalties, he was aware of all of the consequences associated with entry of the plea, that there would not be a trial, that there would be a ten-year suspended sentence followed by five years probation.   He pled no contest.

It was clear he was of clear mind, not under the influence of any medications.   The Court determined that Mr. Deleon had obtained his GED in some inquiry not unlike that which this Court inquired of Mr. Deleon today.   Judge Lavine asked Mr. Deleon if he knew—if he understood—if he knew he was pleading guilty, he indicated yes.   He reviewed the sentence.   He asked if any promises were made to induce him to enter this plea.   Mr. Deleon indicated none had been made.   He inquired specifically if Mr. Deleon had discussed defenses with his lawyers, he said yes.   He discussed the elements of the offenses—or the offense rather.   He reviewed the elements required under the statute risk of injury.

Specifically he reviewed that the statute does require that a person acts willfully, not by mistake or inadvertence, in a way likely to impair the health or morals of a child, and that by pleading guilty he admitted to engaging in contact likely to impair the health and morals of the child.

Mr. Deleon at page 14 of Petitioner's A was asked specifically if he was satisfied with his lawyer's representation, to which he responded yes, and at line 6:  (as read)

“Do you feel that your lawyers have done all they can up to this point to protect your rights and interests?”   To which Mr. Deleon responded, “Yes, YourDP1⌑Again, I needn't review all aspects of the canvass, other then it's clear from the record the Court made a thorough canvass of Mr. Deleon regarding all the rights he was giving up.   The Court also reviewed probation and what that would entail and, again, very atypical of a normal canvass, the Court indicated that probation would not be easy and that, indeed, Mr. Deleon could find himself presented in a court on violation of probation, which might trigger the unexecuted portion of the sentence.

Of note, at page 18, the Court asks Mr. Deleon if the decision to plead guilty is his and his alone and not somebody else's, and he indicates yes at line 17. (as read)

Are you doing this freely because you think it's in your best interest to resolve this?

ANSWER:  Yes, Your Honor.

And you're doing it voluntarily because you want to get this proceeding behind you?

ANSWER:  Yes, Your Honor.

And then the Court asks at the bottom of page 18:  (as read)

“And is there any other reason you're pleading guilty?”

To which the petitioner responds:  “No, Your Honor.”

The Court advises the petitioner if he had gone to trial you might be found guilty and you might face a much harsher or worse penalty.   He indicates, “Yes.”

With regard to the specific allegations here, the petitioner alleges in Paragraph 12 of Count 2 that Siciliano and Bond did not adequately explain the motion to dismiss.   This Court finds that claim unproven for reasons stated.   Petitioner's Paragraph 13, Count 2, alleges Siciliano and Bond failed to adequately explain the likelihood of success on the motion to dismiss.   That claim is unproven for reasons already stated.   Petitioner's 14 alleges Siciliano and Bond failed to adequately explain the risk and benefits of the hearing on the motion to dismiss.   That claim is unproven.   Petitioner's 15 in Count 2 alleges Siciliano and Bond failed to adequately explain the discussions they may have had with the prosecutor or the judge regarding the motion to dismiss.   For reasons stated that claim is unproven.

Petitioner's 16 alleges Attorney Siciliano and Bond failed to adequately advise the petitioner regarding his choices in relation to the motion to dismiss.   That claim is unproven.   With regard to Petitioner's 17, it's alleged that the petitioner did not understand that he had a likelihood of succeeding on the motion to dismiss.   This Court finds that claim to be unproven.   This Court does not find—Or put another way.   This Court makes a finding that it is, indeed, not probable that the petitioner has established he would've prevailed on the motion to dismiss, or that his outcome would've been more favorable.

The witness was ready, willing, and able to testify.   The prosecution was ready and willing and able to access police department witnesses for the purpose of putting on evidence that they made attempts to serve the warrant on Mr. Deleon.   This Court cannot speculate as to the eventual outcome of the motion to dismiss other than to make a cogent decision based upon evidence here that the petitioner has not carried his burden.

With regard to Petitioner's 18, it's alleged that the petitioner did not understand that the motion to dismiss was not denied.   That claim is unproven for reasons already stated.   Again, he was present at the change of plea on March 24 where the pendency of the motion was referenced and the Court views Mr. Deleon's intellect able to understand that the motion had not yet been decided.

Petitioner's 19 alleges that the petitioner did not understand he was giving up a viable constitutional due process claim, that the warrant was stale, and that he could not be prosecuted.   That claim is unproven.   Those claims specifically were being made in the motion to dismiss and this Court accredits the testimony of Attorney Bond that they discussed the substance of that motion with their client, Mr. Deleon.   Petitioner's 20 alleges that the petitioner pleaded guilty with fundamental misunderstanding as to the nature and viability of the motion to dismiss.   That claim is unproven for reasons stated.

Petitioner's 21, 22, and 23, respectively, allege that the petitioner's plea was not knowingly, intelligently, and voluntarily made.   This Court makes a tacit finding that the petitioner's plea of guilty was knowingly, intelligently, and voluntarily made with adequate and effective assistance of counsel in accordance with the plea canvass of Judge Lavine on March 24, '04.   And thus Paragraph 24 is unproven, which alleges that the plea was involuntary and not knowing and not intelligent in deprivation of rights under the Connecticut and U.S. Constitution.   With regard to Paragraph 25 of Count 2, the petitioner alleges his incarceration is illegal in that it was obtained in violation of his constitutional rights.   That claim is unproven for reasons already stated.

With regard to the issue of laches, this Court did review case law advanced or addressing that issue.   The Court did not find an '09 decision of the Appellate Court;  however, the Court did review a trial court decision of some length by Judge dos Santos in the case of Ostroski versus Warden, which is an unpublished decision wherein the Court talks extensively about laches.   And I reviewed other case law, actually, the names of the cases escape me at present, other than to indicate that the Court needs to I believe find prejudice to the respondent in order for that defense to prevail and there also has to be an inexcusable delay.   And this Court need not really address the issue of laches, other than to state in this proceeding the Court does not conclude there's prejudice established by the respondent.   And the Court has reached the merits of the petitioner's claims.

For all of the foregoing reasons, in all respect, the petition for habeas corpus is denied.   Judgment may enter in favor of the respondent.   Should an appeal follow, I am requesting that the petitioner prepare a judgment file within thirty days.   I'm requesting that an on-bench ruling be prepared for my signature.   It shall constitute a memorandum of decision.   I'm requesting further that the clerk prepare notice of appeal rights for the petitioner, that the marshal hand those notices to the petitioner through his counsel, Mr. Bhatt.   The record shall reflect that has been affected at present.   And with that, this matter is concluded.   Anything further, counsel?

ATTY. BHATT:  Yes, Your Honor, if I may ask the Court if the Court would indulge an oral request for articulation on the issue of laches?   Is the Court finding that laches applies in habeas corpus petitions and then finding that it has not been proven?   Or is the Court not—or is not reaching that issue?

THE COURT:  The Court is not reaching the issue of laches and does not find the consideration of that issue in any way dispositive of the ruling here.   But I appreciate that ambiguity, which the Court created in its ruling because it appeared as though I was reaching the issue.   Anything further at this time?

ATTY. BHATT:  Yes. And one—one further thing is that I would ask that the—if—if the Court would—I'd like to make an oral motion to stay the time in which to file the appeal for ten—to ten days from the time that I receive a copy of the Court's oral memorandum transcribed and signed by the Court, which will constitute the written—

THE COURT:  All right.

ATTY. BHATT:  The Court did deliver a lengthy opinion.

THE COURT:  And without hearing from Attorney Grosso, not to interrupt you, Attorney Bhatt, I'm going to grant that motion as I have in other instances.   I'm just requesting that the petitioner's counsel file a timely notice of, (a), request for transcripts, and two, acknowledgement of receipt of transcript and the appeal period shall be tolled for ten days from receipt of the transcript.

ATTY. BHATT:  Thank you, Your Honor.   I appreciate that.

THE COURT:  All right.   Thank you, counsel.   With that, this matter is concluded.   Court stands adjourned till 10:00 a.m. tomorrow morning.  (At which time, this matter was concluded.)

Nazzaro, J.

Nazzaro, John J., J.