114309 v. Warden (2011)

SENTENCING COURT'S RESPONSE TO HABEAS COURT'S REMAND

The court declines to vacate Tyrone King's sentence imposed by this court on January 31, 2005, namely 13 years incarceration, followed by 5 years special parole to run consecutively to the sentence he was serving for a parole violation.

This court does not disagree with the habeas court's conclusion (relying on Strickland v. Washington, 466 U.S. 668) that the defendant's trial counsel failed to adequately advise the defendant whether the defendant should accept a plea bargain offered by the state.   The habeas court found that counsel was “off base” on the maximum number of years he could be sentenced to after a trial, she failed to tell him that any proposed defense based on the petitioner's alleged drug dependency would not be available on all the counts charged and had not advised him that he could be found guilty of being an accessory and receive the same penalty as a principal—that this misstatement and omissions of trial counsel could add up to ineffective assistance of counsel.

This court also does not disagree that the habeas courts could conclude that the second prong of Strickland was also satisfied namely, that counsel's deficient performance prejudiced the defendant because there was a reasonable probability that the outcome of the case would have been different had it not been for the deficient performance.   The habeas court found that it was reasonably probable the petitioner would have accepted the plea bargain.

Nor does this court conclude that the habeas court could not find, based on the circumstances of this case, that the petitioner had provided sufficient evidence to rebut the presumption of adequate assistance of counsel.   This court has no reason to disagree with the habeas court's conclusion that “it is reasonably probable that the defendant would have accepted the state's offer.”   At the trial, the habeas court listened to the witnesses, observed their demeanor.   The habeas judge is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.   The habeas court concluded that based on the evidence presented that the petitioner was prejudiced by his counsel's deficient performance.

The habeas court next considered the proper remedy.   It settled on specific performance of the plea bargain that was rejected by the petitioner.   This topic is a hot one with certiorari having been granted by the U.S. Supreme Court in the case of Missouri v. Frye, 131 S.Ct. 856, and the Connecticut Supreme Court having granted certiorari in the case of Ebron v. Commissioner of Correction, 120 Conn.App. 560, cert. granted, 297 Conn. 912.   Certiorari was denied in another similar case, Sanders v. Commissioner of Correction, 83 Conn.App. 543, referred to by the habeas court in its memorandum of decision dated October 26, 2011.   Finally, there is a third Connecticut Appellate case, H.P.T. v. Commissioner of Correction, at 127 Conn.App. 480, petition for cert. pending.   These three cases (Sanders, Ebron, and H.P.T.) all found specific performance to be an appropriate remedy in cases where the ineffective assistance of counsel was based on a plea bargain.   The habeas court declared that it was bound by the decisions of the Connecticut Appellate Court because the Connecticut Supreme Court and the U.S. Supreme Court had not yet rendered their decisions on this issue.   See fn.16 of Habeas Court's decision.

It is here in fashioning a remedy that the habeas court and I part ways.   In each of the Connecticut Appellate cases, the trial court had agreed with the plea bargain.   In Sanders v. Commissioner of Correction, 83 Conn.App. 543, cert. denied, 271 Conn. 914, the Appellate Court opined that to satisfy Strickland, under the circumstances of this case, the petitioner had to show that he would have accepted the offer [and that the court would have rendered judgment in accordance with the offer.]  (Emphasis added).  Id. In Ebron v. Commissioner of Correction, 126 Conn.App. 560, cert. granted, 297 Conn. 912, at a pre-trial conference, the state made an offer to the defendant and the court indicated that the offer was appropriate except that the 5 years probation should be a conditional discharge.   In H.P.T. v. Commissioner of Correction, 127 Conn.App. 480, the plea bargain offer in issue was the offer of the court.

In Mr. King's case, there is no indication in the decision that any court would have rendered judgment in accordance with the offer made by the state.   According to Sanders it was necessary for the habeas court to find that the trial court would have rendered judgment in accordance with the offer.   See also Cimino v. Robinson, 6 Conn.App. 680, 682 where the Appellate Court found, inter alia, that there was no evidence that had the petitioners accepted the state's offer, that the trial court would have accepted the plea bargain and imposed that sentence.

This court finds persuasive the argument of the state in its opposition to imposition of specific performance in this case.  “While plea agreements are an essential part of the disposition of criminal cases, the right, duty and discretion of the trial judge to fashion an appropriate sentence in each case cannot be undermined by a plea agreement entered into between the parties ․” (Citation omitted.)  Miller v. Commissioner of Correction, 29 Conn.App. 773, 777 (1992).   Therefore, “neither the state nor the defendant, nor a combination thereof, may compel the trial court to accept a suggested disposition arrived at between the parties.”  Miller, 29 Conn.App. at 777.   In other words, a trial court is not bound by the prosecutor's promises nor is it even bound by its own promises.   To the contrary, “[p]ublic policy considerations bear against the specific performance of any promise regarding sentencing made by a judge.”  State v. DeJesus, 10 Conn.App. 591, 603 (1987).  “Modern precepts of penology require that the discretion of a sentencing judge to impose a just and appropriate sentence remain unfettered throughout the sentencing proceedings ․” (Citations omitted.)  Id. p. 8 State's opposition.

Thus, requiring this court to impose the state's pretrial offer denies a court its opportunity to reject the offer and fashion an appropriate sentence.   A court could have rejected the agreement had the defendant accepted it at the appropriate time, it now would be forced to impose a sentence in accordance with the offer—even if it deems such offer inappropriate.   In other words, a postconviction order requiring that a defendant be sentenced in accordance with a pretrial offer gives the defendant greater rights than he possessed during the pretrial stage when he rejected that offer.   P. 9 State's opposition.

Therefore, the habeas court's remand strips this court of its “right, duty and discretion ․ to fashion an appropriate sentence ․” (Citation omitted.)   Miller v. Commissioner, 29 Conn.App. 777.   P. 10 State's opposition.

The habeas court, in fn. 13 of its memorandum of decision, “presumed” that had the petitioner accepted any one of the state's offers, the trial court would have imposed it.   The footnote then makes reference to the Ebron decision in which it quotes from a 1988 6th Circuit case Turner v. Tennessee, 858 F.2d 1201, 1207, to the effect that it is “unfair and unwise to require litigants to speculate as to how a particular judge would've acted under particular ‘circumstances.’  “ This is contrary to Sanders which is a Connecticut case and invades the sentencing authority of the sentencing judge.¹

This court's review of the case law does not find any Connecticut law that supports the habeas court's decision to allow specific performance of a plea bargain where there was no acceptance by the court that was involved in the plea bargain and in this case, there is no evidence of any court's involvement.

The habeas court has ordered this court to do what the habeas court has no authority to do—to sentence.   And the habeas court is remanding to me to do what I have no authority to do—to enter a plea bargain that does not have the acceptance of the court.   In this case, there is no evidence of the acceptance of the plea bargain.   See fn. 13 of the habeas court's decision where the court “presumes that had the petitioner accepted any one of the state's offers, the court would have imposed it.”

The court therefore declines to vacate the sentence entered in this case.² ,³

HAUSER, J.

FOOTNOTES

FN1. The court notes that if the offer is made after a trial judge had been assigned to the case, the trial judge could not involve himself or herself in any plea negotiations.   Such as the case here.   Nor should he or she take a plea.   The petitioner would have to seek out the judge who took part in the plea bargaining process, if indeed a judge participated in the plea bargaining process, to ascertain whether he or she found the plea bargain to be acceptable..  FN1. The court notes that if the offer is made after a trial judge had been assigned to the case, the trial judge could not involve himself or herself in any plea negotiations.   Such as the case here.   Nor should he or she take a plea.   The petitioner would have to seek out the judge who took part in the plea bargaining process, if indeed a judge participated in the plea bargaining process, to ascertain whether he or she found the plea bargain to be acceptable.

FN2. The Appellate Court in its decision in the H.P.T. case emphasized that there is a lack of appellate authority to guide the habeas court in fashioning an appropriate remedy when the deficient performance of counsel results in the rejection of a plea that otherwise would have been accepted by a criminal defendant.   In this regard, the Appellate Court is mindful of the state's concerns particularly with respect to the Doctrine of Separation of Power.  H.P.T., at p. 489..  FN2. The Appellate Court in its decision in the H.P.T. case emphasized that there is a lack of appellate authority to guide the habeas court in fashioning an appropriate remedy when the deficient performance of counsel results in the rejection of a plea that otherwise would have been accepted by a criminal defendant.   In this regard, the Appellate Court is mindful of the state's concerns particularly with respect to the Doctrine of Separation of Power.  H.P.T., at p. 489.

FN3. This court does not analyze the impact, if any, of the rights of victims contained in Article 1.8 of the Connecticut Constitution..  FN3. This court does not analyze the impact, if any, of the rights of victims contained in Article 1.8 of the Connecticut Constitution.

Hauser, Lawrence L., J.