Charles Tucker v. Warden, State Prison (2011)

MEMORANDUM OF DECISION

The petitioner, Charles Tucker, seeks habeas corpus relief from incarceration resulting from his guilty plea to murder, for which crime he received a sentence of thirty-eight years imprisonment.   The petitioner claims that his public defender, Attorney David Channing, rendered ineffective assistance with respect to the entry of that guilty plea and the petitioner's desire to withdraw his plea.

Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims.  Johnson v. Commissioner, 218 Conn. 403, 425 (1991);  Ostolaza v. Warden, 26 Conn.App. 758, 761 (1992).   The Strickland criteria requires that the petitioner demonstrate, by a preponderance of the evidence, both that his attorney's performance was substandard and that the outcome of the proceedings would have been different.  Id.

As to the performance prong of Strickland, the petitioner must establish that trial counsel's representation fell below an objective standard of reasonableness.  Johnson v. Commissioner, supra.   This standard of reasonableness is measured by prevailing, professional norms.  Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel's conduct from that attorney's perspective at the time of the representation.  Id.

The United States Supreme Court has also set forth the prejudice standard for weighing ineffective assistance claims with respect to the entry of guilty pleas.  Hill v. Lockhart, 474 U.S. 52, 59–60 (1985).   The criterion for the prejudice prong announced in Hill v. Lockhart, supra, was incorporated into our habeas law.  Copas v. Commissioner, 234 Conn. 139, 156–57 (1995).   Under these cases, the habeas petitioner must show that, but for counsel's unprofessional representation, the petitioner would have elected to have a trial rather than plead guilty and that the outcome was likely to be more successful.  Id., 151.

Specifically, the petitioner alleges that Attorney Channing was ill-prepared to present the petitioner's self-defense claim at the time trial was impending, because Channing failed to interview and secure the attendance of certain witnesses needed to establish that defense;  that Attorney Channing misadvised the petitioner that he was facing the death penalty if convicted after a trial;  and that Attorney Channing failed to advise and assist the petitioner regarding his desire to withdraw his guilty plea.   The court determines that the petitioner has failed to prove any of these allegations by a preponderance of the evidence.

At the outset, it must be noted that a guilty plea waives all nonjurisdictional defects antecedent to the plea and bars constitutional challenges to those defects.  State v. Johnson, 253 Conn. 1, 80 (2000);  State v. Madera, 198 Conn. 92, 97 (1985);  State v. Banks, 24 Conn.App. 408, 412 (1991).   Only challenges relating to the subject matter jurisdiction of the court or to the involuntary and unintelligent nature of the entry of the guilty plea survive that plea.  State v. Johnson, supra.   This waiver applies with equal force to bar issues from being raised on direct appeal or by collateral attack through habeas corpus.  Dukes v. Warden, 161 Conn. 337, 343 (1971);  Reid v. Reincke, 155 Conn. 591, 597 (1967);  Cajigas v. Warden, 179 Conn. 78, 81 (1979).   The rule even prohibits raising claims of ineffective assistance of counsel with respect to representation which preceded the decision-making process surrounding the guilty plea.  Dukes v. Warden, supra, 343–44.

During the second day of jury selection, the petitioner decided to change his plea to guilty on the charge of murder.   At the habeas trial, Attorney Channing testified that he was fully prepared to defend the petitioner at the jury trial and to present a claim of self-defense on his client's behalf.   The petitioner contends that Attorney Channing only intended to call as defense witnesses the petitioner and his girlfriend, Tanisha Roberts.   The petitioner asserts that Channing ought to have interviewed and procured the presence at trial of three other witnesses:  Damon Yates, Joseph Cardwell, and Anthony Chapman, all of whose significance the petitioner had previously communicated to Attorney Channing.

The petitioner's contention fails to recognize that all these prospective, self-defense witnesses, were also likely prosecution witnesses.   This is so because the state's theory was that the petitioner shot and killed the victim, Robert Pagan, in revenge for a beating of the petitioner inflicted by Pagan and his associate, Tellefaro Brown, two months earlier.

Pagan had been physically assaulted by the petitioner's half-brother and believed that the petitioner instigated that attack.   In August 2004, Pagan and Brown went to the barbershop where the petitioner worked.   When the petitioner exited the entrance to the shop, he was accosted by Pagan and Brown.   They pummeled and kicked the petitioner while he tried to fend off their blows.   The assault was witnessed by the owner and employees of the barbershop.

Shortly after that incident, Damon Yates warned the petitioner that Pagan and Brown were still bent on grievously injuring the petitioner.   The petitioner armed himself and became extremely vigilant of his environment.   He varied the routes he traveled and ceased working at the barbershop.

In October 2004, the petitioner stopped at a bar he frequented.   While conversing with an acquaintance, the petitioner noticed that Pagan was also present and was playing pool.   The petitioner testified that Pagan gave him a menacing look and charged at him with a pool cue.   The petitioner averred that he shot Pagan in defense and then fled to the Washington, D.C. area.

Attorney Channing testified that, except for the petitioner's girlfriend, Roberts, the state's witnesses to the barbershop assault were the same persons that the petitioner wished to present.   There was no dispute between the prosecution and defense concerning the beating of the petitioner in August 2004.   In fact, Brown gave a statement to the Waterbury police, shortly after Pagan was killed, admitting that he and Pagan had “beat down” the petitioner during that encounter.   Thus, the prosecution was going to offer the same testimony that the petitioner wished to offer with respect to these witnesses.

Attorney Channing related that during the second day of jury selection, he conveyed an offer by the prosecutor to recommend a total, effective sentence of thirty-eight years imprisonment for murder, concurrent to a sentence for narcotics trafficking which had previously been imposed in an unrelated case.   The petitioner decided to accept this offer because it was paramount that he not die in prison.   He dared not risk conviction and sentencing after a trial for murder or the lesser, included offense of manslaughter with a firearm and the possibility of spending the rest of his life behind bars.

Attorney Channing thoroughly advised the petitioner regarding the trial rights he was giving up by pleading guilty, including the right to pursue his claim of self-defense before a jury.   He never told the petitioner that he was facing a potential death sentence.   Attorney Channing devoted more than an hour counseling the petitioner as to these waivers.   In the end, the petitioner voluntarily and knowingly chose to plead guilty in exchange for the prosecutor's recommendation.

On October 3, 2006, the petitioner pleaded guilty to murder, and Judge Alexander canvassed the petitioner to ensure that the plea was made intelligently, willingly, and without compulsion or threat.   The petitioner expressly acknowledge during that canvass that he had discussed the change of plea with Attorney Channing and was satisfied with Attorney Channing's representation in that regard.

Between plea and sentencing, the petitioner experienced doubts about his decision and discussed the possibility of withdrawing the guilty plea with Attorney Channing.   Attorney Channing advised that success in withdrawing the plea was unlikely but that he would move for withdrawal if that was the petitioner's wish.   The petitioner wavered about seeking withdrawal of the guilty plea.   Finally, the petitioner informed Attorney Channing that he wanted to proceed under the plea agreement.   Accordingly, no motion to withdraw the guilty plea was filed.

The court finds Attorney Channing's testimony very credible and concludes that the petitioner has failed to prove, by a preponderance of the evidence, that his attorney engaged in any of the unprofessional acts alleged in the petition.   The petitioner was motivated to plead guilty based on the recommended sentence and his aversion to the prospect of dying in a prison.   Attorney Channing's communications regarding the change of plea was accurate and complete, and the petitioner expressed no misgivings about his attorney's capabilities or preparation for the jury trial which was soon to begin.

Therefore, the habeas corpus petition is denied.

Sferrazza, J.

Sferrazza, Samuel J., J.