Carlos Garcia v. Warden, State Prison (2011)

MEMORANDUM OF DECISION

The petitioner, Carlos Garcia, alleges in his Amended Petition for a writ of habeas corpus, filed on March 31, 2011, that he was denied the effective assistance of counsel in connection with his resolution of several criminal charges pending in the Judicial District of Fairfield at Bridgeport.   On March 31, 2008, the petitioner entered guilty pleas under the Alford doctrine to various charges set forth in three informations that arose from three separate arrests for alleged offenses that occurred on three different dates.   In docket number CR 07 225304, the petitioner pled guilty to:  1) one count of criminal attempt to commit assault in the first degree in violation of Conn. Gen.Stat. § 53a–59(a)(5);  2) one count of unlawful discharge of a firearm in violation of Conn. Gen.Stat. § 53–203;  3) one count of carrying a pistol without a permit in violation of Conn. Gen.Stat. § 29–35(a);  4) two counts of criminal possession of a firearm in violation of Conn. Gen.Stat. § 53a–217(a);  and 5) one count of larceny in the third degree in violation of Conn. Gen.Stat. § 53a–124(a)(1).   All of these charges related to events that occurred on or about June 28, 2007.¹  In docket number CR 07 0226022, the petitioner pled guilty to one count of larceny in the third degree in violation of Conn. Gen.Stat. § 53a–124, relating to his possession of goods taken in a burglary that occurred on June 26, 2007.   In docket number CR 07 228207, the petitioner pled guilty to one count of burglary in the second degree in violation of Conn. Gen.Stat. § 53a–102(a)(2) in connection with a burglary that occurred some time either late on June 6 or during the early morning hours of June 7, 2007.

As part of the plea agreement, the state entered a number of nolles on other charges in the three files, including a second burglary in the second degree and two charges of credit card theft.   In addition, the state entered a nolle in a fourth case pending against the petitioner, and agreed not to pursue a violation of probation warrant;  instead agreeing that the petitioner's probation could be terminated in light of his pleas to the other charges.   As part of the plea agreement, the petitioner was to receive a sentence of 20 years to serve, suspended after 15 years, with 3 years of probation.   Had the petitioner been convicted on all crimes charged, and found in violation of his probation, his total exposure was over 100 years of incarceration.

After accepting the petitioner's pleas, the court ordered that a presentence investigation report be prepared.   On May 9, 2008, the court sentenced the petitioner in accordance with the agreed upon recommended sentence.   The petitioner at no time prior to the court imposing sentence asked to withdraw his plea.   Nor did the petitioner take an appeal seeking to set aside his plea.²  The petitioner was represented in all of his matters by Attorney Charles Kurmay.

The petitioner claims that Attorney Kurmay was ineffective because he failed to advise the petitioner that he had a defense to the various criminal charges.   In particular, the petitioner claims that he was mentally unstable during the events of June 28, 2007 due to a troubled upbringing that included being sexually assaulted by a friend's uncle in 1994.   He claims that his girlfriend's disclosures a few days before June 28, 2007 that she and her mother were being harassed by an individual who had previously sexually assaulted her brought back the anxiety and shame that he still experienced from his sexual assault, and directly contributed to his actions that led to his arrest on June 28, 2007.   He claims that Attorney Kurmay failed to advise him that his troubled history and the mental state produced therefrom could have provided a defense to the intent elements of the various charges to which he pled guilty.   The petitioner further claims that Attorney Kurmay failed to have a psychological evaluation done of the petitioner in support of such a defense.

LEGAL STANDARD

“The principal purpose of the writ of habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness ․ To mount a successful collateral attack on his conviction, a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal ․ In order to demonstrate such a fundamental unfairness or miscarriage of justice, the petitioner should be required to show that he is burdened by an unreliable conviction.”  (Citations omitted;  internal quotation marks omitted.)  Summerville v. Warden, 229 Conn. 397, 419, 641 A.2d 1356 (1994).   Here, the petitioner claims that the ineffective assistance of his trial counsel has led to such a result.  “A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction ․ has two components.   First, the defendant must show that counsel's performance was deficient ․ Second, the defendant must show that the deficient performance prejudiced the defense ․ Unless a defendant makes both showings, it cannot be said that the conviction ․ resulted from a breakdown in the adversary process that renders the result unreliable.   Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984).

“The first component, generally referred to as the performance prong, requires that the petitioner show that counsel's representation fell below an objective standard of reasonableness ․ In Strickland, the United States Supreme Court held that judicial scrutiny of counsel's performance must be highly deferential.   It is all too tempting for a petitioner to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable ․ A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.   Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;  that is, the petitioner must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy ․ Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment ․” Henderson v. Commissioner of Correction, 80 Conn.App. 499, 504–05, 835 A.2d 1036 (2003), cert. denied, 267 Conn. 918, 841 A.2d 1190 (2004).

As to the prejudice prong, “an error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment ․ The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding.   Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.”  Strickland v. Washington, supra, 691–92.   Consequently, the petitioner must affirmatively show that his counsel's performance had an adverse impact on the defense.  Id., 693.   Put another way, in order to meet the prejudice prong the petitioner must prove that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.   A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  Id., 694.   Where, as in this case, the petitioner's conviction was the by-product of a guilty plea, the petitioner must show that but for the ineffective assistance of trial counsel, the petitioner would not have pled guilty, would have gone to trial, and likely would have achieved a better result.  Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985);  Copas v. Commissioner, 234 Conn. 139, 162–67, 662 A.2d 718 (1995);  Gray v. Warden, CV 09 400322, 2010 Ct. Sup. (LOIS) 19088 (Super.   Ct., J.D. of Tolland, September 28, 2010) (Schuman, J.).

DISCUSSION

Based on the evidence presented in this proceeding, the court finds that the petitioner has failed to satisfy either prong of Strickland and Hill. The petitioner testified that he told Attorney Kurmay the “fifteen second” version of his prior sexual abuse.   The petitioner essentially told Attorney Kurmay that he had been sexually assaulted, and was reliving the nightmare on the night of the shooting.   Attorney Kurmay confirmed that the petitioner told him about the past sexual assault.   Attorney Kurmay, after receiving authorization from the petitioner, reviewed all of the petitioner's past DCF and medical records to see if there was anything in those records to support a claim of diminished mental capacity.   He found none.

The court has reviewed those same records.   They contain absolutely no reference to the petitioner's prior sexual assault, nor any reference to a diminished mental capacity.   In fact, during an evaluation in 2000, when he was admitted to Connecticut Valley Hospital for substance abuse treatment, the petitioner denied any psychiatric history, any suicidal thoughts, and any past physical or sexual abuse.   The petitioner was also psychologically evaluated several times while in DCF custody.   Those evaluations similarly identified substance abuse as a problem.   They also noted a number of behavioral issues for which the petitioner was treated.   However, nothing in those reports even hint at a diminished mental capacity.

Attorney Kurmay testified that after reviewing the records he saw no basis for a defense of diminished capacity and no reason to request a new psychological evaluation of the petitioner.   He told the petitioner that he did not think a mental health defense would be successful, and even if it was, the result was likely to be a commitment at Whiting that would be longer than the 15 years period of incarceration the state was offering.   Attorney Kurmay testified that the petitioner was actively engaged in plea negotiations and suggested counter-offers to the state's proposal of 20 years suspended after serving 15.   In support of those counter-offers, Attorney Kurmay told the state's attorney about the petitioner's troubled past, including having been sexually assaulted.   However, given the number of charges the petitioner faced, the stand-off with the police, and the petitioner's criminal record, the state would not move from the one and only offer it made in the case.

Based on the testimony of Attorney Kurmay, who the court found to be very credible, the petitioner has failed to provide any evidence that the representation he received was not reasonably competent.   Attorney Kurmay investigated the potential mental health defense, conveyed his thoughts to the petitioner, and attempted to use the petitioner's past to negotiate a better resolution.

In addition, the petitioner presented no evidence from which the court could conclude that failing to seek a psychological evaluation constituted ineffective assistance of counsel.   The petitioner presented no evidence that a psychologist would have, or even might have, been able to connect the sexual abuse of the petitioner in 1994 with his conduct in 2007.   The court would have to speculate that such a connection could have been made and that a reasonably competent attorney would have made that connection.   The court cannot and will not engage in such speculation.

Furthermore, even if the memories of his past might have provided a defense to the petitioner's actions on June 28, there is no reason to believe they would have provided a defense to the other charges to which the petitioner pled guilty, including the burglary, larcenies and criminal possession of firearms.   All of those actions occurred prior to his learning of the alleged sexual abuse of his girlfriend or his confrontation with the perpetrator of the abuse—the events that purportedly triggered the memories of his abuse.   In fact, when asked during this trial where he got the gun he used to confront the ex-boyfriend, the petitioner said he had bought it a few days earlier with the intent of selling it.   Consequently, the illegal possession of that firearm was admittedly the product of a calculated decision, not of a diminished mental state brought about by past sexual abuse.   The other two firearms found in his possession were part of the property that formed the bases for one of the larceny charges, unrelated to the events of June 28, 2007, to which the petitioner pled guilty.   And there is no evidence whatsoever that the burglary that occurred on June 7, 2007, to which the petitioner pled guilty, had anything to do with the memories of his past sexual assault.   Thus, the petitioner's exposure just on crimes to which he pled guilty, and to which any possible diminished mental capacity defense would be inapplicable, was 30 years.   In addition, had the petitioner elected to go to trial he would have faced other felony charges (as to which the state entered nolles) to which the defense would not apply.   Thus, one cannot say that it was ineffective assistance of counsel to focus on plea negotiations rather than pursue a defense that would have left the petitioner exposed to a sentence well in excess of that achieved through a guilty plea.

For these reasons, the petitioner has failed to meet the first prong of Hill and Strickland.

The court further finds that the petitioner has failed to prove any prejudice.   First, given the petitioner's substantial exposure, the fact that his desired defense would not have addressed many of the charges against him, and the fact that there was no historical corroboration of his claimed issue, the court does not credit the petitioner's testimony that had Attorney Kurmay pursued the defense the petitioner would not have pled guilty.   To the contrary, the court credits Attorney Kurmay's testimony that he told the petitioner that the defense was unlikely to succeed and the petitioner himself chose to actively engage in plea discussions.

Second, the petitioner failed to present any evidence that, had he taken his criminal cases to trial and presented his defense, there is a reasonable possibility that he would have ended up with a better outcome than the sentence he received pursuant to his plea.   The petitioner presented no expert to connect his sexual abuse with the events of June 28, 2007, and the court has no reason to believe that such an expert would have been able to do so had the petitioner gone to trial.   Without such testimony one can only conclude that such a defense might have been successful by engaging in rank speculation.

In addition, because the defense was inapplicable to many of the charges there is no reason to believe that the petitioner would have been acquitted of those charges.   Because those charges exposed the petitioner to at least twice the period of incarceration he received by pleading guilty, the court finds that he has failed to prove that there was a reasonable possibility that he would have ended up with a lesser sentence by going to trial.   This is particularly true given the petitioner's criminal history, which includes at least eight prior convictions (at least six felonies), and at least two violations of probation.

The petitioner has failed to prove any prejudice and therefore has failed to meet the second prong of Hill.

CONCLUSION

For all the foregoing reasons, the petition is DENIED.

Bright, Judge

FOOTNOTES

FN1. The evidence reflects that on or about June 28, 2007, the petitioner was called by his pregnant girlfriend who reported that her mother's ex-boyfriend was chasing the two women down a street with a broken bottle.   The petitioner got into a car and proceeded to try to find the women.   He did, picked them up and drove away.   After dropping off the mother, the petitioner and girlfriend continued driving and spotted the mother's ex-boyfriend.   The petitioner stopped the car, removed a handgun from the glove compartment of the car, and confronted the ex-boyfriend.   The petitioner fired the gun, although it is unclear whether he fired at the ex-boyfriend.   The petitioner and his girlfriend then got back in the car and drove to a residence where the petitioner had been sleeping and keeping his possessions.   The police, after being contacted by the ex-boyfriend, proceeded to the residence.   The petitioner, who had barricaded himself in the residence, then proceeded to exchange gunfire with the police.   After a stand-off that lasted approximately three hours, the petitioner surrendered.   Upon entering the residence, the police found three handguns, two of which were taken in one of the burglaries with which the petitioner was charged and, among the petitioner's possessions, other items taken from the burglaries that occurred on June 6 or 7 and June 26, 2007.   In addition, the car the petitioner was driving on June 28 was stolen..  FN1. The evidence reflects that on or about June 28, 2007, the petitioner was called by his pregnant girlfriend who reported that her mother's ex-boyfriend was chasing the two women down a street with a broken bottle.   The petitioner got into a car and proceeded to try to find the women.   He did, picked them up and drove away.   After dropping off the mother, the petitioner and girlfriend continued driving and spotted the mother's ex-boyfriend.   The petitioner stopped the car, removed a handgun from the glove compartment of the car, and confronted the ex-boyfriend.   The petitioner fired the gun, although it is unclear whether he fired at the ex-boyfriend.   The petitioner and his girlfriend then got back in the car and drove to a residence where the petitioner had been sleeping and keeping his possessions.   The police, after being contacted by the ex-boyfriend, proceeded to the residence.   The petitioner, who had barricaded himself in the residence, then proceeded to exchange gunfire with the police.   After a stand-off that lasted approximately three hours, the petitioner surrendered.   Upon entering the residence, the police found three handguns, two of which were taken in one of the burglaries with which the petitioner was charged and, among the petitioner's possessions, other items taken from the burglaries that occurred on June 6 or 7 and June 26, 2007.   In addition, the car the petitioner was driving on June 28 was stolen.

FN2. The respondent filed a special defense of procedural default, claiming that the petitioner is precluded from raising his claim because he did not move to withdraw his guilty plea in the trial court.   The petitioner filed a general denial to the claim, but did not in his reply set forth any facts or assert cause and prejudice for the procedural default.  Practice Book § 23–31(c).  Nor did the petitioner offer any evidence of cause and prejudice at the trial of his petition.   The respondent has therefore requested that the court find that the petitioner is procedurally defaulted and enter judgment for the respondent on that basis.   In doing so, the respondent relies on Crawford v. Commissioner, 294 Conn. 165, 982 A.2d 620 (2009).   The problem with the respondent's reliance on Crawford is that in that case the respondent made clear that he was relying on both the failure to move to withdraw the plea and the failure to appeal as the bases for the procedural default.   Here, the respondent has relied solely on the failure to withdraw the plea.   This is important because, as our Supreme Court noted, there is case law that holds that failure to withdraw a plea alone will not support a default.  Id., 174.   Because the respondent raised neither in his pleading nor any other filing the failure to appeal as a basis for the procedural default, the court cannot consider it as such.   Thus, the court would have to consider whether, in this case, the failure to move to withdraw the plea is enough to support a default.   Because of the conclusion it reaches on the merits, it is unnecessary for the court to consider the respondent's claim of procedural default, and the court declines to do so..  FN2. The respondent filed a special defense of procedural default, claiming that the petitioner is precluded from raising his claim because he did not move to withdraw his guilty plea in the trial court.   The petitioner filed a general denial to the claim, but did not in his reply set forth any facts or assert cause and prejudice for the procedural default.  Practice Book § 23–31(c).  Nor did the petitioner offer any evidence of cause and prejudice at the trial of his petition.   The respondent has therefore requested that the court find that the petitioner is procedurally defaulted and enter judgment for the respondent on that basis.   In doing so, the respondent relies on Crawford v. Commissioner, 294 Conn. 165, 982 A.2d 620 (2009).   The problem with the respondent's reliance on Crawford is that in that case the respondent made clear that he was relying on both the failure to move to withdraw the plea and the failure to appeal as the bases for the procedural default.   Here, the respondent has relied solely on the failure to withdraw the plea.   This is important because, as our Supreme Court noted, there is case law that holds that failure to withdraw a plea alone will not support a default.  Id., 174.   Because the respondent raised neither in his pleading nor any other filing the failure to appeal as a basis for the procedural default, the court cannot consider it as such.   Thus, the court would have to consider whether, in this case, the failure to move to withdraw the plea is enough to support a default.   Because of the conclusion it reaches on the merits, it is unnecessary for the court to consider the respondent's claim of procedural default, and the court declines to do so.

Bright, William H., J.