Jose Melendez v. Warden (2012)

MEMORANDUM OF DECISION

THE COURT:  All right.   The Court is prepared to rule.

The petitioner was convicted after a jury trial of two counts of sale of narcotics by a drug-dependent person, in violation of 21a–278b, and two counts of selling a controlled substance within fifteen-hundred feet of a daycare center, in violation of Connecticut General Statute 21a–278a(b).

The trial Court sentenced the petitioner to thirty years incarceration.   The petitioner appealed that conviction to the Supreme Court, which affirmed it.

The underlying facts of this case as recently found by the jury can be found in the Supreme Court's opinion at 281 Conn. 693.

The petitioner has now brought this petition for a writ of habeas corpus, claiming that the trial counsel, Glenn Conway, was ineffective in his representation of the petitioner in the pretrial proceedings, the trial, and the sentencing.

The Court has heard the evidence.   I have read the exhibits.   I've heard the arguments and have—during the course of the arguments, after hearing from petitioner's counsel on certain of the claims, have denied those claims for failure to produce either any evidence or sufficient evidence to meet his burden on, first, the—there are two Paragraphs 5 in the complaint.

This is on the first Paragraph 5;  (e), (g), (h), (i), (k), and (n) are denied.   All right.

The petitioner's primary and remaining claims relate to Conway's advice regarding a pretrial offer by the state of five years to serve.

The petitioner claims that Conway was deficient because he failed to investigate the claims and provide the petitioner with sufficient information related to a videotape that shows the petitioner in the bathroom of the Fireside Restaurant with a cooperating witness, engaging in a transaction.

The Court has seen these videotapes.   They were shown here several times.   I have seen the 8mm tape, the VHS tape, and the enhanced tape.   In the Court's view, these videotapes are all incriminating and regardless of their quality.

All right.   So the petitioner's remaining claims can be found at the petition in the first Paragraph 5;  (a), (b), (c), (d), (f) and (j) and (m) relate to the plea.   Okay. All right.

Pretrial negotiations implicating the decision of whether to plead guilty are critical stages in the criminal proceedings, and plea bargaining is an integral part of the criminal justice system and essential to the expeditious and fair administration of our process here.   The decision to plead guilty is ordinarily the most important single decision a defendant can make in a criminal case.

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 offer—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, evidence, and the risks and probable outcome of a trial.   Accordingly, the defendant is entitled to effective assistance of counsel regarding the advice he receives regarding whether or not to accept a plea.

To establish a claim of ineffective assistance of counsel, the petitioner must prove, one, that the counsel's representation with respect to the plea fell below the objective standard of reasonableness, and two, that counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome would have been different had it not been for counsel's deficient performance.

Ultimately, the benchmark for judging any claim of ineffective assistance of counsel must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result.

When assessing counsel's performance, the habeas Court is required to indulge a strong presumption that counsel's conduct falls within the wide range of reasonable, professional assistance.

Here, the Court finds that the petitioner has not met his burden to prove that Conway's advice regarding the plea offer of five years fell below that standard, either with respect to the investigation or with respect to the actual advice provided.

The evidence adduced at trial established that—the following—established the following.   The petitioner's focus in the trial was on the video evidence, whether it was the 8mm, the VHS, or the DVD.

The petitioner certainly had no right to view these tapes, although he was allowed to view these tapes prior to making a decision on his plea.   Those videotapes all showed, as I said before, two meetings between the petitioner and the cooperating witness.   They showed transactions between the petitioner and the cooperating witness.

Although the petitioner wishes the Court to focus all its energies on this video evidence, the focus of Mr. Conway's pretrial discussions with the petitioner and on the case generally was on the confidential informant or the cooperating witness, Mr. Franco, and whether or not he would testify at trial, whether he would be produced, whether he would be revealed if he would testify, and what, in fact, he would say.

While the video was important, it was merely corroborating of the testimony of the cooperating witness.

And Mr. Conway testified that in his experience, if the state did not wish to reveal the cooperating witness or the cooperating witness would not be available for testimony, that the case would be nollied or dismissed, and the state would not pursue it.

Mr.—as to the investigation claim, Mr. Conway, I believe, did perform an adequate investigation.   The petitioner has not proved that he did not.

He did, in fact, view the tape early when he—early on in the case.   He saw the transaction—excuse me—the tape, the 8mm which was the original tape, and that, from all accounts, was incriminating evidence, which he explained to the petitioner.

With respect to the claim that Mr. Conway should have slowed down the tape or enhanced the tape, Mr. Conway specifically said that he would not have done that because, A, he didn't have the technology to do it, and B, that he certainly wouldn't want to make the state's case.

The Court finds this to be an adequate, appropriate, and reasonable tactical decision on Mr. Conway's part;  therefore, with respect to the claim of inadequate investigation, that claim is denied for failure to meet the burden of proof.

With respect to the remaining claims, which all deal with whether or not the petitioner received adequate information from Mr. Conway related to the five-year plea offer, the Court also finds that he has not proved that Mr. Conway did not meet the first prong of the Strickland test.

Again, it was not the tape that was the key issue.   It was the testimony of the cooperating witness and whether or not the cooperating witness would be available to testify at trial.

Conway had handled many drug sales—he had defended many defendant's in drug sale cases in New Haven and had worked with Assistant State's Attorney, Mr. Doyle, as an adversary on many, many occasions.   He was very familiar with how the state handled such cases and how offers were viewed when cooperating witnesses or confidential informants were involved.

Mr. Conway had many discussions with Mr. Doyle about the case.   Mr. Doyle made a five-year offer to the petitioner to plead before the confidential witness' identity was revealed.   The offer remained open for many months, and Conway spoke to the petitioner about this five-year offer on a number of occasions.

Conway specifically recommended to the petitioner that he accept the five-year offer.   Conway advised the petitioner that if he rejected it, it would be withdrawn if the state revealed the name of the cooperating witness and would not be revived if the name of the cooperating witness was, in fact, revealed.

He also told the petitioner that if the state wanted to protect the identity of the confidential witness or if the confidential witness refused to testify, then the state would likely nolle or dismiss the charges.

However, if the state revealed the name of the confidential witness, the state signaled—that would be a signal that the confidential witness would be available to testify against the petitioner at trial.   If the confidential witness testified against the petitioner at trial, the video would also come in, and the petitioner would likely be convicted.

The petitioner told Conway that he wanted to review the tape before deciding to make—whether or not to accept the five-year offer.   Although the petitioner had no right to view the tape at that time—although he did have the right to know about it, to be told about it, and his attorney certainly had the right to view it—the state arranged for the petitioner to view a VHS tape of the 8mm tape that the state had had prepared and left the five-year offer open for the express opportunity of the petitioner to view that tape.

After seeing the VHS copy of the tape, the petitioner determined, apparently, that he did not believe it was incriminating—although the Court disagrees with that—and did not believe that the tape alone would convict him.

The trial Court on the record specifically told the petitioner that he'd have the time to review the video that the state presently had in its possession, which was the VHS copy, but that the state could enhance the quality of that tape prior to trial.

Also on the record that day, the assistant state's attorney specifically told the petitioner and the Court—the petitioner was present in court that day—that the five-year offer would be withdrawn if the state had to disclose the name of the confidential cooperating witness.

The state also indicated on the record that if the petitioner wished to plead guilty after that time, he would have to do so in an open plea and leave the sentence up to the Court.   In view of the charges, the state indicated that the petitioner was exposed to eight to twenty-five years.

These facts were established here in court and are also set forth in the Supreme Court's decision of the petitioner's direct appeal.

The petitioner viewed the tape, which revealed him meeting with the confidential witness or cooperating witness and making a transaction, but nonetheless, he rejected the five-year plea.

The Court finds that he did so not because he did not believe the tape incriminated him, as he said here, but rather because he believed that the cooperating witness would be too afraid to be identified and testify at trial and therefore would not appear.

If he didn't appear to testify, the case would be nollied or dismissed.   The petitioner's gamble did not pay off.

After he rejected the five-year plea offer, the state provided the petitioner with the identity of the cooperating witness and an enhanced DVD of the sales, as the Court had warned the petitioner the state might do.

The cooperating witness and the DVD as well, as other evidence, was introduced at trial, and the petitioner was convicted on all counts.

The petitioner now claims that he was not properly advised regarding the plea offer of five years.

The Court finds the petitioner has failed to prove his claim.   The state's five-year plea offer was meaningfully and fully explained to him by Mr. Conway, and Mr. Conway strongly recommended that the petitioner accept that five-year plea offer.

It was the petitioner's decision to reject the plea.   He gambled on the confidential witness not testifying against him at trial, and he lost;  thus, the petitioner's habeas corpus on the remaining claims is denied.

Sir, you have the right to appeal the Court's decision.   The clerk will hand your attorney the appeal papers.

Anything else?

ATTY. MILLER:  Yes. Excuse me, Your Honor.   My client did sign them yesterday.   Yes. But I do—

THE COURT:  He signed them yesterday?   Well, they need to—

ATTY. MILLER:  Oh. Well, he can sign—

THE COURT:  I didn't even render a decision yesterday.

ATTY. MILLER:  He can sign them today.   No.

That was just in case.   If you want him to sign them again, I'll take his acknowledgment.

THE COURT:  Well, let's just make sure they're dated properly, shall we?

ATTY. MILLER:  Well, then, Mr. Melendez, will you sign them again.

Your Honor, I just have one procedural question.

THE COURT:  Oh. Excuse me.   Before you say that.

The Court would ask the court reporter to transcribe the Court's oral decision, and I'll sign that as my memorandum of decision.

ATTY. MILLER:  Does the Court wish us to file these papers within the—according to the Practice Book, within the next ten days, or do they want us to wait until we have the hard copy of your decision?

THE COURT:  You have to file your petition—

ATTY. MILLER:  Yes.

THE COURT:—for  certification to appeal within ten days, regardless of whether my memorandum of decision is transcribed because this is the date of my decision.

ATTY. MILLER:  That's fine, Your Honor.   I just wanted to clarify that.

THE COURT:  So you have to do that, and then you will eventually get that transcribed decision—

ATTY. MILLER:  Yes.

THE COURT:—which  will be put in the appellate file.

ATTY. MILLER:  Thank you.

THE COURT:  Anything else?

ATTY. MACIULEWSKI:  No, Your Honor.

THE COURT:  All right.   Court is adjourned.

(The matter was concluded, and court was adjourned for the day.)

Susan Quinn Cobb, Superior Court Judge

Cobb, Susan Quinn, J.