Walter W. Urda, Jr. v. Warden State Prison (2012)

MEMORANDUM OF DECISION

The petitioner, Walter W. Urda, Jr., seeks habeas corpus relief in the form of the vacating of his guilty pleas based on a claim of ineffective assistance of his trial counsel, Attorney Lawrence Somma.   On June 14, 2005, the petitioner received a total, effective sentence of six years imprisonment, execution suspended, with five years probation.   Although the petitioner's probationary term has expired, he was still under legal custody by virtue of that probation when he initiated this habeas action on November 16, 2009.   A habeas court has subject matter jurisdiction to adjudicate a claim of illegal custody if the petitioner was under such custody at the time the petition was filed.  Young v. Commissioner, 104 Conn.App. 188, 191 (2007).   Thus, because the petitioner was on probation when he filed this habeas action, the court maintains jurisdiction to resolve his claims.   Following trial, the court makes the following findings of facts and rulings of law.

During a one month period in early 2004, the petitioner was arrested six times for domestic violence and related offenses involving the same victim.   The victim was his erstwhile girlfriend with whom he shared a residence.

On August 31, 2004, the petitioner applied for accelerated rehabilitation and the family violence diversionary programs.   The trial court denied entry to these programs based on the seriousness and number of allegations against the petitioner.   Subsequently the petitioner had several meetings with Attorney Somma, and, on March 31, 2005, the petitioner accepted the prosecutor's offer to plead guilty to four counts of violation of a protective order and two counts of assault third degree.   The prosecutor agreed to nolle other charges, including illegal possession of a weapon allegations which carried mandatory jail sentences upon conviction.   Also, the prosecution would recommend a sentence cap of six years incarceration, suspended after the service of eighteen months, with five years probation.   The petitioner was afforded the right to argue for a lesser, effective sentence.   Following acceptance of his guilty pleas under the Alford doctrine, on June 14, 2005, the trial court imposed the fully suspended sentences described above.

The petitioner now avers that he never saw any police reports before entering his guilty pleas nor did Attorney Somma discuss with him the substance of those documents.   He contends that he first learned of the victim's allegations only after sentencing through an FOIC request he filed.   He further submits that Attorney Somma never advised him of the strength and/or weaknesses of the state's case against him.   The petitioner alleges that, had he known of the fallacious accusations of the victim contained in such reports, he would have elected to proceed with a trial of the charges rather than have pleaded guilty.   Finally, the petitioner alleges that Attorney Somma failed to discuss the contents of a presentence investigation (PSI) report with the petitioner to his detriment.

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.

The court determines that the petitioner has failed to satisfy either prong of the Strickland–Hill–Copas standard.

Regarding the performance aspect of the Strickland test the court finds that the petitioner's testimony at the habeas trial is unworthy of belief.   The petitioner's desire to undo the past regarding his decision to plead guilty forms no basis for vacating those pleas.   The court determines that, contrary to the petitioner's contentions, Attorney Somma adequately discussed the strengths and weaknesses of the state's case and the defense case with the petitioner before he decided to accept the prosecution's offer.   He was fully aware of the victim's allegations against him regarding each crime to which he pleaded guilty.   His guilty pleas were made knowingly, voluntarily, and with the effective advice of his counsel.

It must be kept in mind that the petitioner expressly pleaded guilty under the holding of North Carolina v. Alford, 400 U.S. 25 (1970).   This doctrine was explained to him by the trial court, and the petitioner acknowledged that, though he denied committing the offenses, the state was likely to prevail upon trial.   His present disagreement with those allegations is, then, of little moment.

What is very significant, however, is the prosecutor's detailed descriptions of the factual bases for each of the six crimes to which he pleaded guilty which were recounted during the petitioner's plea proceedings.   The prosecutor stated that the first violation of a protective order arose because the petitioner phoned the victim four times while under an order barring any contact with the victim.   The first assault charge pertained to the victim's allegations that the petitioner repeatedly beat her resulting in a black eye, numerous bruises, and numerous abrasions, all confirmed by the police.   The victim further avowed that the petitioner had ripped the phone from the wall when she sought to have the police rescue her.   Three neighbors overheard the struggles.   The third incident involved another assault and violation of the protective orders at a hotel, wherein the victim complained that the petitioner choked her and pulled her by her hair.   Again, the police observed abrasions on the victim's neck and cuts on her hands and photographed these injuries.   The police noted that the petitioner admitted assaulting the victim on this occasion.   The last two violations of protective orders pertained to allegations of twenty-seven phone calls made by the petitioner to the victim over a five-day period despite the ban on such contact issued previously by the court.

In response to inquiry by the court during the plea canvass, the petitioner acknowledged the strength of the state's cases against him.   He also affirmed that Attorney Somma discussed the elements of each crime with him and the state of the evidence against him prior to his change of pleas.   He agreed that he had sufficient time to consult with Attorney Somma before his guilty pleas and that he was satisfied with Somma's representation.   He acknowledged that the decision to plead guilty and accept the prosecution's offer was his own, made with the advice of his attorney, and made without force or compulsion.

As to the PSI, Attorney Somma testified that he did, in fact, discuss the salient contents of that report with the petitioner before sentencing.   He quoted from the PSI when he addressed the court on the petitioner's behalf at the sentencing hearing.   Attorney Somma characterized the PSI as favorable to the petitioner in that it suggested a fully suspended sentence.   The court finds Attorney Somma's testimony to be credible, and the court is persuaded that he did, indeed, adequately discuss the PSI with the petitioner.

The petitioner proffered no expert witness who criticized Attorney Somma's representation of the petitioner.   The court concludes that Attorney Somma provided effective advice and achieved a result for the petitioner that was exceedingly favorable.

As to the prejudice component under Strickland, as modified by Hill and Copas, that prong demands more than a showing that the petitioner would have rejected the plea offer.  Gonzales v. Commissioner, 124 Conn.App. 740, 745 (2009).   The habeas petitioner must also prove that, by trial or rejection of that offer, the petitioner “would have received a more favorable sentence.”   Id. To establish prejudice, the petitioner must demonstrate that he was “likely to have been successful at trial.”  State v. Aquino, 89 Conn.App. 395, 408 (2005).

The petitioner cannot rely on conjecture or speculation to prove prejudice.   Gonzalez v. Commissioner, 127 Conn.App. 454, 458 (2011).   The prejudice under Strickland must be established by “demonstrable realities.”  Id. No expert evidence, or otherwise, was adduced as to the prosecutor's willingness to afford a more favorable offer or as to the likelihood of success at trial.   Given the prosecutor's recitation of the evidence recounted above, success at trial seems dubious.

The burden is on the petitioner to prove, by a preponderance of the evidence, both prongs of Strickland.   The court concludes that he has proved neither.   The petition is, therefore, denied.

Sferrazza, J.

Sferrazza, Samuel J., J.