Dexter Burke v. Warden, State Prison (2011)

HABEAS TRIAL MEMORANDUM OF DECISION

THE COURT:  Thank you, counsel.   I have considered the evidence presented today, including the testimony and the exhibits.   I've reviewed the entire file and considered the arguments of counsel.   And for, the following reasons, the petition for a writ of habeas corpus is denied.

The issue in this case is whether counsel rendered ineffective assistance of counsel in failing to give the petitioner proper advice regarding the immigration consequences of his plea.   As in any ineffective assistance of counsel claim, the court can resolve it under the deficient performance prong or under the prejudice prong.   That's what Strickland holds.   I think the state's suggestion that the court resolve it under the prejudice prong is a good one in view of the evidence here.

The standard for proving prejudice in a guilty plea case comes from Copas v. Commissioner of Connecticut—Commissioner of Correction, 234 Conn. 139, and it's expressed as proof that the petitioner would have gone to trial and received a more favorable outcome at page 157, note 10, and page 163.   And at pages 166–67 it's expressed as proof of a reasonable likelihood of a different outcome at trial.

In this case the petitioner received a net effective sentence of ninety days in jail, yet he was facing exposure of more than twenty-three years in prison.   It is hard to imagine a more favorable outcome than the one the petitioner received given his exposure.   In any event, the petitioner here presented absolutely no evidence or any proof at all that he would have been acquitted or received a lighter sentence at trial.   It is the petitioner's burden to do so and he has not met it.   That, in itself, should be dispositive.

In addition, however, there is some evidence that would refute any evidence that the petitioner might have presented that he would have received a more favorable disposition had he gone to trial.   In the transcript of the guilty plea—Exhibit 2, January 10 transcript, pages 3–4—the petitioner admitted that he was in violation of his probations.   These admissions are not challenged here and so the petitioner stands in the position of having—of the evidence showing that he admits that he was in violation of probation, which would expose him to two years in prison.

On pages 4 and 5, the transcript shows that the evidence of larceny by the petitioner was strong and when coupled with the evidence in the PSI, including the petitioner's own admission to a bank officer and to a police—and to the police that he was at least responsible for taking the money, it seems most unlikely that the petitioner would have prevailed at trial on the larceny charge.   So he likely would have been facing twenty years for that, especially given the large amount of money—over ten thousand dollars—that was stolen.

On page 8 of the transcript, the petitioner admits that he likely would have been found guilty and get a worse punishment, which is precisely the point that he would have to disprove had he presented evidence of prejudice here.   In fact, he's admitted it in the transcript that the outcome would have been worse had he gone to trial.

There is no evidence on the domestics which were the other charges that he faced at the time.   But, again, it's the petitioner's burden to prove that he would have done better if they had not been nolled.   And that would seem hard to do, especially since the complainant in one of them was the same complainant as the one in the case he was on probation for.

So the petitioner has not proven prejudice under Copas or introduced even any evidence of prejudice under Copas.   Therefore, the petition for a writ of habeas corpus is denied.

The court monitor will kindly produce a transcript of this decision which will serve as the memorandum of decision.

The petitioner, if he appeals, shall prepare a judgment file within thirty days and the petitioner is entitled to notice of his right to petition for certification to appeal.

Anything further, counsel?

ATTY. MCKAY:  No, Your Honor.

ATTY. PILLSBURY:  No, thank you, Your Honor.

THE COURT:  Thank you, counsel.

ATTY. MCKAY:  Thank you, Your Honor.

THE COURT:  We'll stand adjourned.

Shuman, J.

Schuman, Carl J., J.