Marcial Salgado v. Warden, State Prison (2011)

MEMORANDUM OF DECISION

MEMORANDUM OF DECISION

I have considered the testimony, the exhibits, the arguments of counsel, and I've reviewed the file and for the following reasons the petition for a writ of habeas corpus is denied.

The main claim of the petitioner is essentially one under Ebron and Sanders that trial counsel did not meaningfully convey a plea offer to the petitioner or rendered deficient advice concerning that plea offer.   I think it's reasonably clear that there was an offer made by the state.   It was for some term suspended after probably three or four years in prison with probation, involving sex offender treatment, no contact with the victim, and other conditions that are usually placed on offenders in these situations.

This offer was probably made before the Jarzbek testimony was taken in the hopes of saving the victim from having to testify.   So, the petitioner has proved that much, but petitioner has failed to prove that trial counsel gave bad advice to the petitioner or did not meaningfully convey the offer to the petitioner.

I do find that trial counsel conveyed the offer to the petitioner, it was his general practice to do so, and it was a matter that he kept pursuing normally throughout the course of pretrial.

I don't find that there was any offer made during jury selection that counsel failed to convey.   It was not the state's practice generally to make an offer once the first juror was selected and there was nothing unusual in this case to cause the state to deviate from that practice.   So, I believe that trial counsel did convey the offer to the petitioner.   The question then becomes was trial counsel's advice sufficient.

There is no Connecticut case law holding that counsel must affirmatively advise the defendant to plead guilty to a particular offer.   That decision ultimately rests with the petitioner.   The only case law stemming from Ebron and Sanders requires that counsel not give bad advice and to meaningfully explain the offer.

Clearly, counsel did not give bad advice concerning the offer.   The only suggestion of that is that the petitioner was under the belief that he might just get a two-year sentence or even less, if he were found guilty at trial.   I simply do not credit that testimony.   Counsel—trial counsel credibly testified that he explained the maximum sentence that the petitioner could receive, if he were convicted of all charges, and it's simply not—which I think totals about eighty years, and it's simply not credible to believe that experienced trial counsel, as was Mr. Jones, told the petitioner that he would only get two years, if he were convicted at trial on six serious charges.

So, and clearly this is not a case in which there's any evidence that trial counsel advised the petitioner not to accept the plea offer.   So, this is not a case of bad advice.   The only other possibility is that trial counsel did not meaningfully explain the plea and the offer, but it is petitioner's burden to prove that and petitioner did not meet that burden by presenting evidence that trial counsel failed to explain the offer to the petitioner.

In the absence of such evidence, there's a presumption of competence that attaches to trial counsel's performance and the petitioner has not overcome that presumption.

I will simply add that the testimony concerning the lunch meeting, which may well have occurred after the offer was made and perhaps withdrawn, nonetheless reveals that trial counsel did agree that the petitioner should have accepted or should accept the offer, and this tends to suggest that trial counsel would have meaningfully conveyed the offer to the petitioner and perhaps have recommended it.   The final element of an Ebron Sanders type claim is that petitioner would have accepted the offer.

I find the evidence clearly establishes that the petitioner did not accept the offer and would not have accepted the offer almost—under almost any circumstances.

I credit the evidence that the petitioner was adamantly opposed to pleading guilty to sexual assault charges because all that it would entail to his livelihood, to his reputation, and to his liberty, and I credit Mr. Jones' testimony to that effect.   Even if I credit the petitioner's testimony on this matter, the petitioner himself testified he wasn't sure whether he would have taken four years at the time.

So, the evidence clearly establishes that the petitioner under any circumstances would not have accepted a four-year offer.   So, I find that the petitioner has failed to prove an Ebron Sanders type claim.

The second claim is that trial counsel failed to investigate possible defenses, specifically here a defense stemming from the discovery of pubic hair in the victim's bedroom, apparently near the victim's bed.

I find no deficient performance because the petitioner himself never said that it was hair belonging to anyone else and thus never gave counsel a reason to investigate that claim.

Arguably, in a close case this is something that trial counsel should do on his own, but in any event clearly in this case there was no prejudice proven by the petitioner because the petitioner in this trial did not prove that the pubic hair belonged to anyone else and, therefore, the petitioner has not shown any benefit that would have resulted from an additional investigation by trial counsel.

Petitioner has, therefore, failed to prove the other claim that he has raised.

For these reasons the petition for a writ of habeas corpus is denied.

The court reporter kindly will prepare a transcript of this decision which will serve as the memorandum of decision.

Petitioner's counsel shall prepare a judgment file within thirty days and the petitioner's entitled to notice of his appellate rights, and I see that he's been given notice.

I thank counsel for their presentation.   Is there anything further that we can do today?

ATTY. DUBY:  Briefly, Your Honor, the judgment file was thirty days?

THE COURT:  Yes, sir.

ATTY. DUBY:  Okay. And then the last issue was the issue with the transcripts and the sealing and I want to persist in that issue.

THE COURT:  Out of an abundance of caution I'll order that the transcripts be sealed subject to further order of the court, so that the victim's name is not disclosed publicly.   If trial counsel need access to the transcripts, or if counsel need access to the transcripts, I'll grant permission, but at this point I'll order them sealed.

ATTY. DUBY:  And that's by joint motion of the parties, I take it?

THE COURT:  It is.

Anything further?

ATTY. DUBY:  No, Your Honor.

THE COURT:  We'll stand adjourned then—or in recess.

(End of Excerpt as ordered.)

(A recess was taken.)

Schuman, J.

Schuman, Carl J., J.