Eric Kennedy v. Warden, State Prison (2011)

MEMORANDUM OF DECISION

THE COURT:  The only real issue in this case, based on the evidence—and I use the word evidence—that was presented to this court is whether Attorney Moscowitz told Mr. Kennedy, the petitioner, what the agreed-upon sentence was.   The petitioner says he didn't.   Mr. Moscowitz says he did.

Based upon the transcripts of the plea and sentencing, it appears much more likely that Mr. Moscowitz deserves the credibility nod in this case.

The court is convinced that the petitioner did have the agreement explained to him and did understand that at the time he pled and was sentenced.

I've reviewed the plea canvass.   The is no problem with the plea canvass.   The court sees no evidence of any problem in connection with the plea of guilty and the sentencing.

Now, I do have some comments to make.

In regard to the nolle of the cases that were pending in the GA–23, that really is a non-issue.   In order for there to be ineffective assistance of counsel, there must be ․ the court has to find that there is deficient performance on the part of the trial defense counsel and that this deficient performance operated to the prejudice of the petitioner.

Even if I assume that it was deficient performance on the part of Attorney Moscowitz not to inform Mr. Kennedy that the GA cases were going to be nolled, I can't see any way that there's any prejudice to Mr. Kennedy.   The cases went away.   He never got prosecuted on them.   He cannot be prosecuted on them.   They were serious charges.

So that's an absolute non-issue, as far as the court can see.

This is a guilty plea, and, of course, the standard that has to be applied is Hill v. Lockhart, which requires a showing that as a result of some defect or deficient performance on the part of the trial counsel, the petitioner pled guilty and that, but for that, he would have pled not guilty, gone to trial and been acquitted.

Now I'm going to comment about the evidence that the court's received in this case, because there is minimal real evidence presented to this court.   There are a lot of statements by lawyers, there are a lot of transcripts, there are a lot of hearsay statements contained within the PSI, but as far as any real actual evidence, the court has no actual evidence to base any finding of fact that the petitioner would have been acquitted had he gone to trial, so it is clear that the Hill v. Lockhart standard is nowhere near being met in this case.

As far as the failure to investigate and call other witnesses, once again, assuming that to be deficient performance, this court has no evidence as to what any of these other witnesses would say because the witnesses weren't brought into the habeas court here to testify.

And I will note that although the petitioner states he was intimidated by Judge Damiani, I'm going to note that from the transcript it appears that Judge Damiani gave him jail credit on this case back to July 2005, which it is clear under statute he was not entitled to receive.   So Judge Damiani gave a break to the petitioner that the petitioner doesn't deserve under the statutes enacted by the legislature.

And one final comment.   There's been testimony by Attorney Moscowitz that the petitioner was not remorseful.   I'm not sure that's the correct word.

I did read his comments, the petitioner's comments carefully at the sentencing and at the guilty plea and he does appear to be remorseful.   It's true he doesn't take responsibility for the actions, for the injuries that the child suffered;  that he has steadfastly, and even as late as today maintained that it was if he was responsible for shaking the baby too hard, it was as a result of trying to revive the baby, not to injure the baby and he had no intent to do so.

While that certainly doesn't reflect that Mr. Kennedy is admitting responsibility for the injuries to the child, it does not mean, at least in this court's opinion, that he isn't remorseful for what has happened to the child.   Not that that's a major legal point, but it may well be a major point with Mr. Kennedy.

Based on what's been presented to this court, the court simply cannot conclude that there has been any defect in the plea or sentencing;  that the plea agreement was properly explained to Mr. Kennedy;  that he entered into this plea agreement willingly, voluntarily and as a result of proper counsel.   There is nothing presented to this court that would undermine the confidence of this court in the plea and the sentence that was adjudged.

Consequently, the petition for a writ of habeas corpus must, therefore, be denied.

Fuger, J.

Fuger, S.T., J.