Miguel LaLanne v. Warden (2012)

MEMORANDUM OF DECISION

I. Procedural History

The petitioner, a permanent resident from Haiti, was the defendant in matters pending in the Stamford Superior Court.   He was represented in those matters by Attorney Benjamin Aponte, a full-time public defender from the Stamford Public Defenders Office.   On May 9, 2008, pursuant to a negotiated plea agreement, the petitioner entered guilty pleas under the Alford Doctrine to carrying a dangerous weapon, General Statutes § 53a–206, and reckless endangerment 2nd degree, General Statutes § 53a–64, under Docket No. CR07–0161340, and to possession of narcotics with intent to sell, General Statutes § 21a–277a, under Docket No. CR08–0162448.   The terms of the plea agreement provided for a “cap” of five years, suspended after two years incarceration, followed by three years probation, with the right for counsel to argue for less.   Following the preparation of a presentence investigation report, sentencing arguments were heard before the court, Comerford, J., on July 11, 2008, who sentenced the petitioner to a total effective sentence on all charges of 5 years, suspended after 15 months incarceration, followed by 3 years probation.

The petitioner commenced the present action by filing a petition for writ of habeas corpus on December 18, 2009.   In an amended petition filed October 24, 2011, the petitioner claims he received ineffective assistance of counsel.   The respondent filed a return on November 29, 2011, and the petitioner filed a reply to the return on December 14, 2011.   The matter was tried before the court on January 19, 2012.   The only witnesses who testified were the petitioner and defense counsel.

II. Law

a. Ineffective Assistance of Counsel Claim

“The longstanding test for determining the validity of a guilty plea is ‘whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.’  “ Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (citing North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)).

“[T]he decision to plead guilty before the evidence is in frequently involves the making of difficult judgments.   All the pertinent facts normally cannot be known unless witnesses are examined and cross-examined in court.   Even then the truth will often be in dispute.   In the face of unavoidable uncertainty, the defendant and his counsel must make their best judgment as to the weight of the State's case.   Counsel must predict how the facts, as he understands them, would be viewed by a court.   If proved, would those facts convince a judge or jury of the defendant's guilt?   On those facts would evidence seized without a warrant be admissible?   Would the trier of fact on those facts find a confession voluntary and admissible?   Questions like these cannot be answered with certitude;  yet a decision to plead guilty must necessarily rest upon counsel's answers, uncertain as they may be.   Waiving trial entails the inherent risk that the good-faith evaluations of a reasonably competent attorney will turn out to be mistaken either as to the facts or as to what a court's judgment might be on given facts.

That a guilty plea must be intelligently made is not a requirement that all advice offered by the defendant's lawyer withstand retrospective examination in a post-conviction hearing.”

McMann v. Richardson, 397 U.S. 759, 769–70, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).  “[The United States Supreme Court] has recognized that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial.”  Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).  “The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel's skill and knowledge is necessary to accord defendants the ample opportunity to meet the case of the prosecution to which they are entitled.”  Id., 685.

“Where ․ a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases ․ [A] defendant who pleads guilty upon the advice of counsel may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.”  (Internal quotation marks omitted.)  Hill v. Lockhart, supra, 474 U.S. at 56–57.  “[T]he defendant must show that counsel's representation fell below an objective standard of reasonableness.”  Id., 57.   A defendant must also show that they were prejudiced as a result of counsel's objectively unreasonable performance, meaning that “there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.”   Id., 59.  “In its analysis, a reviewing court may look to the performance [1st] prong or to the prejudice [2nd] prong, and the petitioner's failure to prove either is fatal to a habeas petition.”  Hall v. Commissioner of Correction, 124 Conn.App. 778, 783, 6 A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d 571 (2011).

The petitioner in the present case, who is now the subject of deportation proceedings, claims that his trial counsel failed to advise him of the potential adverse immigration consequences that might result from his guilty pleas.¹  Counsel has a duty to provide a criminal defendant with available information about the possible deportation consequences of a plea.   Padilla v. Kentucky, 08–651 (U.S.3–31–2010), pp. 14, 130 S.Ct 1473.  “[We] have long recognized that the negotiation of a plea bargain is a critical phase of the litigation for purposes of the Sixth Amendment right to effective assistance of counsel.   The severity of deportation—the equivalent of banishment or exile—only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation.”  (Internal citations omitted;  internal quotation marks omitted.)  Id., 16.  “When the law is not succinct and straightforward, a criminal defense attorney need do no more that advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.   But, when the deportation consequence is truly clear ․ the duty to give correct advice is equally clear.”  Id., at 12–13.   In order to prevail on a claim such as this, a petitioner not only must show that counsel's advice as to possible immigration consequences fell below the standard of reasonableness, but “a petitioner must also convince the court that the decision to reject the plea bargain would have been rational under the circumstances.”  Id., at 14.

The petitioner in the present case has failed to prove his claim.  Id. The court credits the testimony of Attorney Aponte, who indicated that his office deals with a significant number of both documented and undocumented individuals, so he deals with the reality of having to advise his clients about the possibility of immigration consequences as a result of criminal convictions on a daily basis.   He also testified that he had taken training on collateral consequences to convictions, which included issues related to deportation and advising clients thereon.   Attorney Aponte testified further that he had represented the petitioner on several prior cases, and was aware that he was from Haiti, and that he and the petitioner specifically contemplated and discussed possible immigration consequences that might result from a conviction in discussions leading up to the original disposition of the reckless endangerment and weapon case, and that avoiding those consequences was at least part of the basis for the decision to apply for accelerated rehabilitation on that case.²  Finally, the court credits Attorney Aponte's testimony that he and the petitioner specifically discussed possible immigration consequences as they related to the plea agreement that is the subject of this action and that trial counsel advised the petitioner prior to the entry of his pleas that “it was likely” that he would be deported as a result these convictions.   Counsel, therefore, performed competently and provided the petitioner with all the advice on this issue that the law requires.  Padilla v. Kentucky, supra.   Since the court has found that counsel's performance was not deficient, there is no need to address the issue of prejudice, and the petitioner's claim must fail.  Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.

III. Conclusion

Based on the foregoing, the petition for writ of habeas corpus is DENIED.

If the petitioner wishes to appeal this finding, the counsel shall prepare and submit a judgment file to the clerk within thirty (30) days.

Hon. John M. Newson

FOOTNOTES

FN1. The petitioner did have a second claim alleging failure to investigate which was dismissed by the court at the conclusion of trial, because the petitioner failed to produce any evidence on this issue..  FN1. The petitioner did have a second claim alleging failure to investigate which was dismissed by the court at the conclusion of trial, because the petitioner failed to produce any evidence on this issue.

FN2. Counsel had actually successfully argued an application for admission into the accelerated rehabilitation program on the petitioner's behalf on the weapon and reckless endangerment case in late February 2008.   About two or three weeks later, the petitioner was arrested on the drug charges, which lead the AR being terminated and the charges returned to the docket..  FN2. Counsel had actually successfully argued an application for admission into the accelerated rehabilitation program on the petitioner's behalf on the weapon and reckless endangerment case in late February 2008.   About two or three weeks later, the petitioner was arrested on the drug charges, which lead the AR being terminated and the charges returned to the docket.

Newson, John M., J.