255908 v. Warden, State Prison (2011)

MEMORANDUM OF DECISION

On January 30th, 2009, the petitioner, Terry Johnson, filed a petition for a writ of habeas corpus, which was amended on October 30, 2009.   The petitioner claims that he was denied the effective assistance of trial counsel in violation of the sixth and fourteenth amendments to the United States Constitution and article first, § 8 of the Connecticut Constitution in a number of ways, including, but not limited to, the following:  counsel failed to adequately present and explain meaningfully to the petitioner a plea bargain offer by the state;  counsel failed to again adequately present and explain meaningfully to the petitioner a plea bargain after a motion to suppress had been denied;  counsel failed to adequately present and explain meaningfully to the petitioner the advantages of accepting the state's offer of four years subject to the entry of a conditional plea of nolle contendere;  counsel failed to adequately consult with petitioner throughout the entire proceedings or review with him the documentary evidence in possession of the state;  trial counsel failed and neglected to file a motion in limine or object at trial as to the testimony by Officer Frank Bellizzi;  trial counsel failed to object to improper questions addressed by Officer Frank Bellizzi concerning petitioner's “motive.”

The matter came to trial on June 8, 2010.   The court heard testimony from the petitioner, his trial counsel, Attorney Frank Canace, and a legal expert, Attorney Conrad Ost Seifert.   The petitioner entered into evidence the criminal trial transcripts, a pretrial transcript, and the resume of its legal expert.   The respondent proffered three letters from Attorney Canace to his client, the petitioner.

The Court has reviewed all of the testimony and evidence and makes the following findings of fact.   For reasons stated more fully below, the petition is denied.

FINDINGS OF FACT

1. The petitioner was the defendant in a case in the judicial district of New Britain bearing docket number CR 04218629, in which he was charged with criminal intent to commit the sale of narcotics, in violation of General Statutes §§ 53a–49a(2) and 21a–278(b), possession of narcotics with the intent to sell, in violation of General Statutes § 21a–278(a), and possession of narcotics, in violation of General Statutes § 21a–279(a).

2. Except for the arraignment and a small part of the pretrial phase of the petitioner's criminal matter, he was represented by Attorney Frank Canace.   Canace graduated from law school in 1994 and, after being admitted to the bar later that same year, he began practicing law.   His practice has consisted primarily of criminal defense work with cases ranging from minor misdemeanors to homicide matters.

3. After pretrial, the Court, Handy, J., offered the petitioner a sentence of four years to serve.   Petitioner then wished to proceed to hearing on his motion to suppress.   After an evidentiary hearing, the motion was denied, Cronin, J. The defendant was tried before a jury, with Vitale, J. presiding, and found guilty of all three charges.¹

4. On December 6, 2005, the trial court, Vitale, J., sentenced the petitioner to a total effective sentence of twenty years, execution suspended after twelve years, five of which were mandatory, to be followed by five years probation.²

5. The petitioner appealed from the judgment of conviction to the Appellate Court, which appeal was transferred to the Supreme Court.   The Supreme Court affirmed his convictions.  State v. Johnson, 286 Conn. 427, 944 A.2d 297 (2008).   The Supreme Court of the United States denied the petitioner's petition for writ of certiorari.  Johnson v. Connecticut, 129 S.Ct. 236, 172 L.Ed.2d 144 (2008).

6. As stated by the Supreme Court, the jury could have reasonably found the following facts regarding the underlying offenses:  “On October 27, 2004, the New Britain Police Department arrested a man named Curtis Thornton for various narcotics offenses.   Following his arrest, Thornton spoke with Officer Frank Bellizzi, an eight-year veteran of the New Britain police department.   During the course of the conversation, Thornton offered to provide Bellizzi with the name of the individual from whom Thornton previously had purchased narcotics in exchange for leniency in the form of future court or bond consideration.   Once an informant offers to provide such information, it is the practice of the New Britain police department to assess his credibility and the reliability of this information.   In an effort to make this assessment, Bellizzi questioned Thornton about topics such as ‘weights and measurements and costs' of drugs.   After this discussion, Bellizzi concluded that Thornton ‘knew what he was talking about ․’

7. “Thornton then provided Bellizzi with a physical description of the defendant as his narcotics supplier.   Thornton described this individual, from whom he had often purchased crack cocaine in front of the apartment building at 188 Allen St. in New Britain, as a tall, thin African–American male in his mid-twenties who usually wore a New York Yankees baseball cap.   Thornton also noted that the defendant, whom he knew as ‘Bird,’ drove a gray or silver Saab.

8. “At approximately 6:20 p.m. on October 27, 2004, at Bellizzi's direction, Thornton called the defendant from the police station on his cellular phone in order to arrange a meeting for the purposes of purchasing drugs.   Bellizzi observed that the telephone number that Thornton had called matched the number Thornton previously had told Bellizzi belonged to the defendant.   Bellizzi also observed Thornton during the course of Thornton's conversation with the defendant.   Bellizzi testified that he heard Thornton ask for two and one-quarter ounces of cocaine, discuss the dollar amounts related to the sale for that quantity, and mention the amount of money Thornton owed the defendant for prior drug purchases.

9. “After placing a telephone call, Thornton informed Bellizzi that the defendant had agreed to deliver two and one-quarter ounces of cocaine shortly thereafter in the parking lot in front of 188 Allen Street, one of three multifamily apartment buildings in a complex where Thornton and the defendant previously had met to conduct drug transactions.   Bellizzi relayed this information along with Thornton's physical description of the defendant, to police officers who had arrived in unmarked police cars in the parking lot in front of the apartment buildings at 188, 190 and 192 Allen Street.   In Bellizzi's presence, Thornton telephoned the defendant the second time at approximately 6:40 p.m., and the defendant confirmed that he was en route to the Allen Street meeting place, and that he would arrive shortly.   Bellizzi then relayed this information to the officers who were present at the Allen Street location.

10. “At approximately 7:10 p.m., a gray Saab occupied by two men drove into the parking lot at 188 Allen Street, ‘looped around’ the lot, and parked in the front of that address.   The driver of the automobile, a black male who was wearing a New York Yankees cap, matched the description that Bellizzi previously had relayed to the officers at the scene.   The officers drove their police vehicles up to the Saab and encircled it so that it could not leave the scene.   The officers then removed the defendant, who was driving the automobile, handcuffed him, and placed him under arrest.   After his arrest, police searched the defendant and found $363 and two and one-quarter ounces of crack cocaine in his pockets.   During the booking procedure at police headquarters, the police found an additional 0.6 grams of crack cocaine in the defendant's coat pocket.   Additionally, a search of the Saab's interior revealed a cellular telephone in the front seat that, it was determined, had received calls from Thornton's cellular telephone earlier that day.”  State v. Johnson, supra, 286 Conn. 430–32.

11. Additional facts will be discussed as needed.

DISCUSSION

In his amended petition, the petitioner alleges that his trial counsel rendered ineffective assistance of counsel by (1) failing to adequately present and explain meaningfully to the petitioner a plea bargain offer by the state for four years to serve prior to the hearing on the motion to suppress tangible evidence, and failed to adequately inform the petitioner of the risks of trial;  (2) again failing to adequately present and explain meaningfully to the petitioner the same plea bargain offered by the state subsequent to the hearing on the motion to suppress tangible evidence;  (3) failing to present and explain meaningfully to the petitioner, after the court's denial of the motion to suppress, the advantages of accepting the state's offer of four years to serve subject to the entry of a conditional plea of nolo contendere in order to allow an appeal of the court's denial of the motion to suppress;  (4) only providing the petitioner with very limited contact, despite the petitioner's wish for greater consultation with him;  (5) neglecting to file a motion in limine to exclude hearsay testimony or object at trial to hearsay testimony by Officer Frank Bellizzi;  and (6) neglecting to object to improper questions by the state, addressed to Bellizzi.

“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).

“According to the standard enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a petitioner alleging ineffective assistance of counsel must establish that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance.”  (Internal quotation marks omitted.)  Lane v. Commissioner of Correction, 129 Conn.App. 593, 597, 20 A.3d 1265 (2011).

“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 ․ 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 ․ [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment ․” Spells v. Commissioner of Correction, 108 Conn.App. 192, 196, 947 A.2d 404, cert. denied, 288 Conn. 910, 953 A.2d 653 (2008).

“The second part of the Strickland analysis requires more than a showing that the errors made by counsel may have had some effect on the outcome of the proceeding ․ Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different ․ When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt.”  (Internal quotation marks omitted.)  Id., 196–97.

“Because both prongs [of Strickland ] must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong ․ Accordingly, a court need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim.”  (Internal quotation marks omitted.)  Id., 197.

“Our Supreme Court has recognized that pretrial negotiations implicating the decision of whether to plead guilty is a critical stage, and, therefore, a defendant is entitled to adequate and effective assistance of counsel at this juncture of the criminal proceedings.”  Ebron v. Commissioner of Correction, 120 Conn.App. 560, 567, 992 A.2d 1200, cert. granted, 297 Conn. 912, 995 A.2d 954 (2010).  “[A]lmost every criminal defendant is faced with the crucial decision of whether to plead guilty or proceed to trial.   Although this decision is ultimately made by the defendant, the defendant's attorney must make an informed evaluation of the options and determine which alternative will offer the defendant the most favorable outcome.   A defendant relies heavily upon counsel's independent evaluation of the charges and defenses, applicable law, the evidence and the risks and probable outcome of a trial.”  (Emphasis in original;  internal quotation marks omitted.)  Id., 572.

“On the one hand, defense counsel must give the client the benefit of counsel's professional advice on this crucial decision of whether to plead guilty ․ As part of this advice, counsel must communicate to the defendant the terms of the plea offer ․ and should usually inform the defendant of the strengths and weaknesses of the case against him, as well as the alternative sentences to which he will most likely be exposed ․ On the other hand, the ultimate decision whether to plead guilty must be made by the defendant ․ And a lawyer must take care not to coerce a client into either accepting or rejecting a plea offer ․ Counsel's conclusion as to how best to advise a client in order to avoid, on the one hand, failing to give advice and, on the other, coercing a plea enjoys a wide range of reasonableness because [r]epresentation is an art ․ and [t]here are countless ways to provide effective assistance in any given case ․ Counsel rendering advice in this critical area may take into account, among other factors, the defendant's chances of prevailing at trial, the likely disparity in sentencing after a full trial as compared to a guilty plea (whether or not accompanied by an agreement with the government), whether defendant has maintained his innocence, and the defendant's comprehension of the various factors that will inform his plea decision.”  (Citations omitted;  internal quotation marks omitted.)  Edwards v. Commissioner of Correction, 87 Conn.App. 517, 524–25, 865 A.2d 1231 (2005), citing and quoting Purdy v. United States, 208 F.3d 41, 44–45 (2d Cir.2000).

The petitioner's first three claims allege that his counsel failed to adequately present and explain meaningfully to the petitioner a plea bargain offer by the state, both before and after the hearing on the motion to suppress, as well as failed to present and meaningfully explain the right to appeal due to the conditional nolo contendere plea.   As a result of this alleged ineffective assistance of his trial counsel, instead of taking what was a fairly generous pre-trial offer by pleading nolo contendere and preserving his right to appeal the suppression ruling, the petitioner declined the state's offer and proceeded to trial.

At the habeas trial, the petitioner testified that the first time he was offered the four-year deal, he decided not to accept it after speaking with Attorney Canace, who felt that they had a good chance to prevail at the suppression hearing.   When the four-year deal was again offered after losing at the suppression hearing, however, the petitioner stated that “originally, well, initially, I was just going to accept the four years, but first [Attorney Canace] spoke to me about I guess one of my court dates ․ afterward, we spoke about ․ me being able to go to trial ․ [S]o after we spoke about going to trial ․ I guess I kind of felt that we had a chance to win trial ․” ³

On cross examination, the petitioner again stated that he spoke with counsel about his chances of winning at trial after losing the suppression hearing, but that he opted to plead guilty to the four years with the hope that he would be given a week or two to handle his affairs before being placed into custody.   When his request for such time was denied by Judge Handy, however, the petitioner stated that he then made the decision to reject the offer by pleading not guilty and taking his case to trial.

Attorney Canace testified at the habeas trial that he explained the four-year offer to the petitioner when it was initially offered, and also explained that he believed that there were some strong suppression issues, especially if the state's confidential informant did not testify.   Regarding the extra time the petitioner wanted to get his affairs in order, he stated that he recalled the petitioner asking for such time, but that he informed him that he had already agreed in good faith with Judge Handy that if the petitioner were to take the plea agreement, he would be going to jail right away.   When asked whether he had considered having the petitioner enter a conditional plea of nolo contendere conditioned on the right to appeal, Attorney Canace confirmed that the agreement was a plea of nolo contendere, and that he had explained the consequences of such a plea to the petitioner, noting that he could still appeal the suppression hearing decision.⁴

Attorney Canace further testified that when the four-year offer was re-extended after losing at the suppression hearing, he specifically advised the petitioner that he should take the deal, whereas he typically only provides legal advice to his clients and does not specifically advise them one way or another.⁵  He did this, he explained, because he had grown fond of the petitioner, who at that time was expecting the birth of a child.   Additionally, Attorney Canace believed that the petitioner had no chance of prevailing at trial after losing the suppression hearing because all that the state would need to prove was that the drugs were found within the petitioner's dominion and control.⁶  Attorney Canace also testified that he went over the petitioner's possible imprisonment exposure in the event he went to trial and lost.⁷  He estimated that his exposure was thirty years on each sale charge, and fifteen on the possession charge, noting that while the judge would not sentence him to that much time, it would certainly be something more than four years.

After reviewing the testimony elicited at the habeas trial and the petitioner's plea hearing, this court finds that the four-year offer was adequately presented and meaningfully explained to the petitioner by Attorney Canace.   The court credits Attorney Canace's testimony that he met with the petitioner and explained the options that he had, both before and after the suppression hearing.   While he did not make a recommendation whether to take the four-year offer prior to the suppression hearing, he did inform the petitioner of his options and the legal implications thereof.   After losing the suppression hearing Attorney Canace went one step further and made a specific recommendation to the petitioner that he should accept the deal, as the chances of winning at trial were very slim without the evidence being suppressed.

It is also clear from the record that the petitioner had weighed his options and had decided to accept the four-year offer when he appeared in court for his plea hearing.⁸  It was not until his request for additional time to handle his affairs was denied by Judge Handy that he changed his mind.⁹  The petitioner's statement that Attorney Canace never explained that the proposed plea agreement was a nolo contendere plea, preserving his right to appeal the suppression hearing, as well as the petitioner's suggestion that had he known this, he would have taken the offer, are both not credible.   Consequently, and based upon the foregoing, the court finds that the petitioner has failed to prove the first three bases of ineffective assistance of counsel.

The petitioner's fourth asserted basis for ineffective assistance is that Attorney Canace only provided the petitioner with very limited contact, despite the petitioner's wish for greater consultation with him.   While no contact or communications whatsoever between counsel and client might be indicative of deficient performance, a measurement of the extent of communications is not akin to a sliding scale that indicates degrees of deficiency.   That is, infrequent communications may or may not support claims of deficient performance.   Conversely, very frequent communications do not automatically insulate an attorney from claims of deficient performance.

The petitioner claims that Attorney Canace only met with him at the courthouse and never at Attorney Canace's office.   The credible evidence indicates that Attorney Canace regularly and frequently met with the petitioner in court as well as at the petitioner's residence.   Additionally, the petitioner and Attorney Canace also communicated via telephone calls and Attorney Canace corresponded with the petitioner.   Based upon the foregoing, the court finds that there is no merit whatsoever to the petitioner's fourth basis for ineffective assistance of counsel.

The petitioner's last two assertions are that counsel failed to file a motion in limine or object at trial as to the testimony by Officer Frank Bellizzi, and object to improper questions addressed by Officer Bellizzi concerning the petitioner's motive.   At the habeas trial, Attorney Canace was questioned as to why he did not file a motion in limine or object at trial to Officer Bellizzi's testimony.   He explained that once the suppression hearing had been lost, he felt that there was no way he could win the possession of narcotics with intent to sell charges at trial because all that the state would need to put into evidence was that the petitioner had constructive possession of the drugs.   He felt that the only chance of prevailing at trial was to allow the state to put into evidence how the police officers came about the drug evidence, which would be introduced through the testimony of Officer Bellizzi.   Attorney Canace believed that, based on his testimony at the suppression hearing, Officer Bellizzi would come across to the jury as unbelievable and unreliable, and he hoped that the jury would be so put off by his testimony that they would find the petitioner not guilty on the other charges.   Attorney Canace further testified that he preserved all of the petitioner's rights with regard to hearsay.   He stated that much of Officer Bellizzi's testimony was admissible under the hearsay exception of effect on the listener, and he was not allowed to testify directly as to what he heard from the informant.   In fact, the petitioner's habeas counsel pointed to a number of hearsay objections made by Attorney Canace throughout the trial transcript testimony of Officer Bellizzi.¹⁰

This court finds that Attorney Canace did not fail to provide effective assistance of counsel to the petitioner by deciding not to file a motion in limine or to object at trial to testimony of Officer Bellizzi.   It is clear that Attorney Canace believed, based on his knowledge and experience, that his only chance to prevail at trial was to attack the credibility of the officers and their investigation, which led to the petitioner's arrest.   He decided that the best way to do this was to elicit testimony from Officer Bellizzi, who he did not find credible, and hope the jury would agree.   This strategy, which the court finds to be reasonable, is further evidenced by a letter from Attorney Canace to the petitioner.   See Respondent's Exh. C. Additionally, with respect to the petitioner's claim that Attorney Canace also failed to object to improper testimony by Officer Bellizzi concerning the petitioner's “motive,” such claim was not argued at the habeas trial or in the petitioner's briefs, and, therefore, the claim is deemed abandoned.

In sum, Attorney Canace reasonably and effectively represented the petitioner.   He meaningfully explained the state's plea offer of four years to serve, both before and after the suppression hearing, and he clearly indicated to the petitioner what he thought the chances of prevailing at trial were.   He adequately consulted with the petitioner throughout the proceedings, and the ultimate decision to proceed to trial was made by the petitioner alone.   Additionally, taking into account the strength of the state's case at trial, there is no indication that counsel's trial strategy fell below an objective standard of reasonableness.

CONCLUSION

Based on the foregoing, the petition for a writ of habeas corpus is DENIED.   Judgment shall enter in favor of the respondent.   Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days.

BY THE COURT,

T. Santos, J.

FOOTNOTES

FN1. Petitioner's Exhibit (Exh.) 1, pp. 280–82..  FN1. Petitioner's Exhibit (Exh.) 1, pp. 280–82.

FN2. Petitioner's Exh. 1, pp. 285–303..  FN2. Petitioner's Exh. 1, pp. 285–303.

FN3. June 8, 2010 Habeas trial transcript, June 8, 2010, p. 11..  FN3. June 8, 2010 Habeas trial transcript, June 8, 2010, p. 11.

FN4. June 8, 2010 Habeas trial transcript, pp. 28–29..  FN4. June 8, 2010 Habeas trial transcript, pp. 28–29.

FN5. June 8, 2010 Habeas trial transcript, p. 68..  FN5. June 8, 2010 Habeas trial transcript, p. 68.

FN6. June 8, 2010 Habeas trial transcript, p. 59..  FN6. June 8, 2010 Habeas trial transcript, p. 59.

FN7. June 8, 2010 Habeas trial transcript, p. 60..  FN7. June 8, 2010 Habeas trial transcript, p. 60.

FN8. August 3, 2005 Transcript, p. 1..  FN8. August 3, 2005 Transcript, p. 1.

FN9. August 3, 2005 Transcript, p. 3..  FN9. August 3, 2005 Transcript, p. 3.

FN10. June 8, 2010 Habeas trial transcript, pp. 43–44..  FN10. June 8, 2010 Habeas trial transcript, pp. 43–44.

Santos, Thelma A., J.