141625 v. Warden, State Prison (2012)

MEMORANDUM OF DECISION

The petitioner, Lee Owens, alleges in his petition for a writ of habeas corpus, initially filed on August 25, 2008, and amended on July 12, 2010, in count one, that he was denied the effective assistance of trial counsel, and in count two, that his plea was involuntary because at the time of plea he was impaired by the ingestion of medication and narcotic substances, in violation of the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution and consequently, that he should be allowed to withdraw his guilty plea.   For reasons set forth more fully below the petition is denied.

The matter came to trial on February 24, 2011.   The court heard testimony from the petitioner and Attorney Jerald Barber, who represented the petitioner after the plea, and prior to sentencing, in pursuit of a motion to withdraw his plea.   In addition, the petitioner entered into evidence a copy of the motion to vacate the plea and transcripts of his plea hearing and sentencing.   Respondent proffered a transcript of petitioner's violation of probation hearing scheduled on the same day as his plea hearing.   The petitioner and the respondent filed post-trial briefs on November 12, 2011 and December 12, 2011 respectively.

The Court has reviewed all of the testimony and evidence and makes the following findings of fact.

FINDINGS OF FACT

1. The petitioner was the defendant in a criminal case in the judicial district of New Haven under docket number CR07–0070907 in which he was charged with possession of narcotics with intent to sell in violation of Conn. Gen.Stat. § 21a–278(b).  In addition, in docket number CR05–0040425, he was charged with a violation of probation based on the alleged crime of possession of narcotics with intent to sell.

2. A hearing was scheduled for May 5, 2008, to determine whether petitioner had violated his probation in CR05–0040425.

3. On May 5, 2008, pursuant to an agreement, petitioner pleaded guilty under the Alford doctrine to possession of narcotics with intent to sell and admitted to a violation of probation.¹  Sentencing was scheduled for June 10, 2008.

4. Petitioner was represented in both matters by Attorney Richard Silverstein.

5. After his plea hearing, and prior to sentencing, petitioner hired Attorney Jerald Barber to pursue a motion to withdraw his pleas.   The motion was withdrawn June 10, 2008.

6. On June 10, 2008, represented by Attorney Silverstein, petitioner was sentenced, as per the agreement, to fourteen years, execution suspended after seven years, five years of which is mandatory, followed by five years probation.²

7. Additional facts will be discussed as needed.

DISCUSSION

The petitioner now comes before this court seeking to withdraw his voluntary plea of guilty to the charge of possession of narcotics with intent to sell and his admission to one count of violation of probation.

The claim of ineffectiveness of counsel, in the amended petition, complains in count one that trial counsel, Attorney Richard Silverstein, failed to adequately and/or meaningfully explain the State's offer, the charges involved and the sentence to be imposed as part of the agreement;  failed to alert the court that petitioner was under the influence of medication and/or narcotics at the time of his plea;  failed to recognize and/or ignored that petitioner was impaired and unable to enter a knowing, intelligent and voluntary plea or fully and adequately comprehend the proceedings;  and failed to move to withdraw petitioner's pleas.   Additionally, in count one petitioner claims that Attorney Jerald Barber failed to pursue the motion to withdraw petitioner's pleas;  withdrew the motion to withdraw petitioner's pleas;  and failed to adequately investigate the circumstances surrounding petitioner's pleas.   Count two indicates that petitioner's plea was not knowingly, intelligently and voluntarily made and petitioner was under the influence of medication and/or narcotics at the time of his plea.   Petitioner asserts that, but for these deficiencies, petitioner would have not pleaded guilty and would have insisted on going to trial.

The respondent's return admits certain facts and because there isn't sufficient information to admit or deny other facts, leaves the petitioner to his burden of proof.   Respondent also raises three special defenses, (1) procedural default;  (2) res judicata;  and (3) abuse of the writ.   Petitioner's reply denies each of these special defenses and indicates the petitioner is prejudiced because he stands convicted of a plea that he did not enter knowingly, intelligently and voluntarily.   There is no evidence petitioner has previously litigated the claims raised in this petition, nor is there any indication petitioner has previously challenged the underlying convictions.   The court finds, therefore, that the special defenses are inapplicable.

A. ATTORNEY RICHARD SILVERSTEIN DID NOT PROVIDE INEFFECTIVE ASSISTANCE OF COUNSEL

The standard this court must apply is well established.  “A petitioner's right to effective assistance of counsel is guaranteed by the sixth and fourteenth amendments to the United States constitution, and by article first, § 8, of the Connecticut constitution.   The right to counsel is the right to the effective assistance of counsel ․ The right to counsel, however, is the right to effective assistance and not the right to perfect representation.”   (Internal quotation marks omitted.)  Woods v. Commissioner of Correction, 85 Conn.App. 544, 549, 857 A.2d 986 cert. denied, 272 Conn. 903, 863 A.2d 696 (2004).  “The Sixth Amendment recognized the right to the assistance of counsel because it envisions counsel playing a role that is critical to the ability of the adversarial system to produce just results.   An accused is entitled to be assisted by an attorney ․ who plays the role necessary to ensure that the trial is fair.”  Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

“[T]he governing legal principles in cases involving claims of ineffective assistance of counsel arising in connection with guilty pleas are set forth in Strickland v. Washington, 466 U.S. 668, 687–88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).   In Strickland, which applies to claims of ineffective assistance during criminal proceedings generally, the United States Supreme Court determined that the claim must be supported by evidence establishing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance ․ The first prong requires a showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the [s]ixth [a]mendment ․ The second prong under the test in Hill, in which the United States Supreme Court modified the prejudice prong of the Strickland test for claims of ineffective assistance when the conviction resulted from a guilty plea, the evidence must demonstrate that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial ․” (Internal citations omitted;  quotation marks omitted.)  Crawford v. Commissioner of Correction, 285 Conn. 585, 598, 940 A.2d 789 (2008).

Although petitioner alleges ineffective assistance by Attorney Richard Silverstein, petitioner never called Attorney Silverstein to testify.   The court will nevertheless, address the specific claims relating to Attorney Silverstein as outlined in the amended petition.   The petitioner alleges that Attorney Silverstein failed to adequately explain the state's offer of the charges involved and the sentence to be imposed as part of the plea agreement.   The court finds no merit to this claim.   The evidence presented shows that on at least three occasions petitioner had discussions with Attorney Silverstein regarding the charges;  first when Attorney Silverstein was initially retained by petitioner, second when petitioner was served with the violation of probation warrant, and third when he received an offer from the state, the offer as well as potential issues were discussed.   Attorney Silverstein indicated to the petitioner that even if they were to beat the drug charges, he would still be found guilty of the violation of probation.³

The second and third alleged deficiencies pertain to Attorney Silverstein's failure to alert the court to the fact that petitioner was under the influence of medication and narcotics at the time of his plea and ignored evidence of petitioner's impairment and allowed him to enter a plea while impaired.   The court finds no merit to this claim.   There is nothing in the plea canvass before Judge Richards to show any deficiencies.⁴  Petitioner never indicated any hesitation when asked questions regarding taking any medicine that may affect his judgment, discussing the offer with his Attorney, or of any reasons that the court should not accept the plea.   This was not the first time petitioner was on probation,⁵ nor was he a stranger to the criminal justice system.   Petitioner had a lengthy criminal history and was familiar with the court system in this state as well as other states.   On cross-examination by respondent, petitioner indicates in his plea that he did “slur his words because the judge kept asking me speak louder sir, speak louder.”   Although the plea transcript reflects on two occasions Judge Richards requesting petitioner to speak up, the court notes there is no indication as to why this was requested.   Respondent, at the habeas trial, questioned petitioner whether he had any problems with balance or having to hold himself up on the table during the plea.   Petitioner responded no on both accounts.⁶  There is no evidence presented of petitioner's impairment or that he was exhibiting signs of a person under the influence such that Attorney Silverstein should have alerted the court to any impairment at the time of the plea.

The fourth alleged deficiency is that Attorney Silverstein failed to withdraw petitioner's plea.   The court relies on the previous discussions as to why this claim fails.

B. PETITIONER SUFFERED NO PREJUDICE

The second prong in Hill, which modified Strickland 's prejudice prong, requires the defendant to show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and insisted on going to trial.⁷  The evidence presented shows that while there may have been some issues with the drug charges, the petitioner was on probation and owed a total of seven years.   Petitioner's testimony that he would have proceeded to the violation of probation hearing is not credible.   No evidence was presented other than through petitioner's testimony as to what the problems were, as Attorney Silverstein did not testify.   Together with the new charges, petitioner would be facing a total of twenty-seven years if he went to trial.   The violation of probation hearing would be held first and would show that petitioner had on his person a large sum of money, multiple cell phones and six bags of crack cocaine that when analyzed consisted of just less than one-half ounce of freebase cocaine.⁸  Had the petitioner continued to plead not guilty and insisted on going to trial, the petitioner would have been found guilty and received more jail time, as he owed seven years for the violation of probation alone.

For all the reasons stated, the court finds no ineffective assistance of counsel regarding Attorney Richard Silverstein.   The court next discusses the allegations as they pertain to Attorney Jerald Barber.

C. ATTORNEY JERALD BARBER DID NOT PROVIDE INEFFECTIVE ASSISTANCE OF COUNSEL RELATING TO THE MOTION TO WITHDRAW PETITIONER'S GUILTY PLEA

Petitioner alleges Attorney Barber failed to adequately pursue the motion to withdraw petitioner's pleas and did not adequately investigate the circumstances surrounding petitioner's pleas.   The court finds no merit to these claims.   The evidence presented indicated that between filing the motion on May 5, 2008 and the sentencing date on June 10, 2008, Attorney Barber ordered and received a copy of the plea transcript, spoke to Attorney Silverstein and asked petitioner to produce a prescription covering the time period of his plea.⁹  When requested to provide Attorney Barber with any information regarding the medication he was on, other than petitioner's own indication that he was on medication, petitioner failed to produce any prescriptions or information pertaining to the medicine he had taken.¹⁰  Attorney Barber testified that he would only pursue the motion if petitioner could prove that he was under the influence of legally obtained prescription medication because he believed otherwise petitioner “would be admitting to illegal drug use on probation, which would be a per se violation.” ¹¹  Attorney Barber testified that factoring in to his assessment to withdraw the motion was the frivolity of the motion and the fact that the petitioner could not produce a valid prescription.¹²  Pursuant to the Connecticut Rules of Professional conduct, “a lawyer shall not ․ defend a proceeding ․ unless there is a basis in law and fact for doing so that is not frivolous ․” ¹³ After investigating petitioner's claim and finding no evidence to substantiate the claim, Attorney Barber's withdrawal of petitioner's motion to withdraw his guilty plea was entirely proper.

D. PETITIONER'S PLEA WAS VOLUNTARY

The Supreme Court has held that before a court can accept a guilty plea, an inquiry of the defendant must be made to ensure he understands he is waiving his constitutional rights, specifically the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one's accusers.  Boykin v. Alabama, 395 U.S. 238 (1969).  “Guilty pleas must be intelligent, voluntary and knowing ․ A defendant must be aware of all direct consequences of his plea.”  (Internal quotation marks omitted.)  Williams v. Commissioner of Correction, 120 Conn.App. 412, 418, 991 A.2d 705, cert. denied, 297 Conn. 915, 996 A.2d 279 (2010).   A habeas court, as well as a trial court, may properly rely on the defense attorney's representations, as well as the responses of the petitioner at the time he responded to the trial court's plea canvass, in determining that he was adequately informed of the elements of the offense charged.  Bowers v. Warden, 19 Conn.App. 440, 443, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989).

The present case is analogous to Carey v. Commissioner of Correction, 86 Conn.App. 180, 860 A.2d 776 (2004), cert. denied, 272 Conn. 915, 866 A.2d 1283 (2005).   In Carey v. Commissioner, the petitioner entered a guilty plea to one count of sexual assault in the first degree in violation of General Statutes § 53a–70 pursuant to the Alford Doctrine.   Petitioner moved to withdraw his guilty plea at sentencing and requested that he be allowed to proceed to trial claiming that his pleas was not voluntarily made because he claimed to be under the influence of medication.   He indicated that on the day of the guilty plea, he had pain in his leg and took some medication to alleviate the pain.  “At the plea hearing, however, the petitioner had stated that although he had taken pain medication, he was not under the influence of any drugs.   He responded to the questioning of the court during the canvass that his plea was voluntary and knowing and that he was satisfied with the advice of his attorney.   A court, ‘may properly rely on ․ the responses of the [petitioner] at the time [he] responded to the trial court's plea canvass ․’ “ Carey v. Commission of Corrections, supra, 86 Conn.App. 185, citing State v. Casado, 42 Conn.App. 371, 377, 680 A.2d 981, cert. denied, 239 Conn. 920, 682 A.2d 1006 (1996).   In Carey, the court held that the petitioner's plea was made knowingly and voluntarily, and the petitioner did not substantiate that at the time of his plea, he was under the influence of medication that allegedly caused him to be confused.

In the present case, the court engaged in a full canvass of the petitioner.   The court specifically asked the petitioner,

THE COURT:  Take any drugs, alcohol, medicine which might affect your judgment?

MR. OWENS:  NO.

THE COURT:  Have you had enough time to discuss your case with [your] lawyer and are you satisfied with your lawyer's advice?

MR. OWENS:  Yeah.¹⁴

At any point during the plea canvass the petitioner, his attorney, the prosecutor or the Judge could have stopped the questioning if they observed something odd about the petitioner's behavior.   When asked on cross-examination during the habeas proceeding if he needed to hold himself up on the table during the plea agreement or if he had any issues with balance, petitioner indicated he could not recollect having issues with balance and that he was not allowed to hold himself up on the table.   The court finds petitioner's testimony regarding the use of drugs prior to and during the plea canvass not to be credible.   No evidence was presented at trial regarding the use of drugs except by petitioner's own self-serving admissions.   When asked by counsel to provide any sort of documentation to substantiate the claim that he was under the influence of prescription medication, petitioner could not produce the pill bottle prescription from a doctor or his medical records.¹⁵  Having produced no evidence to the contrary, the petitioner's plea stands as being presumptively valid, and made knowingly, voluntarily and intelligently with the assistance of counsel.

CONCLUSION

Petitioner has not met his burden of proof and has failed to substantiate his claims.   For the reasons stated above, judgment shall enter denying the petition for a writ of habeas corpus.   Counsel for petitioner shall prepare and submit a judgment file to the clerk within thirty (30) days of this judgment.

T. Santos, J.

FOOTNOTES

FN1. Petitioner's Exhibit (Ex.) 2;  North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)..  FN1. Petitioner's Exhibit (Ex.) 2;  North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

FN2. Petitioner's Ex. 3, pp. 5–7..  FN2. Petitioner's Ex. 3, pp. 5–7.

FN3. Habeas trial transcript pp. 26–33..  FN3. Habeas trial transcript pp. 26–33.

FN4. Petitioner's Ex. 2, pp. 4–10..  FN4. Petitioner's Ex. 2, pp. 4–10.

FN5. Habeas trial transcript pp. 47–48, 57–59..  FN5. Habeas trial transcript pp. 47–48, 57–59.

FN6. Petitioner's Ex. 2, at p. 9, habeas trial transcript at p. 51..  FN6. Petitioner's Ex. 2, at p. 9, habeas trial transcript at p. 51.

FN7. Copas v. Commissioner of Correction, 234 Conn. 139 (1995), 662 A.2d 718..  FN7. Copas v. Commissioner of Correction, 234 Conn. 139 (1995), 662 A.2d 718.

FN8. Petitioner's Ex. 2, at p. 3..  FN8. Petitioner's Ex. 2, at p. 3.

FN9. Habeas trial transcript p. 7..  FN9. Habeas trial transcript p. 7.

FN10. Habeas trial transcript pp. 8, 62–63..  FN10. Habeas trial transcript pp. 8, 62–63.

FN11. Habeas trial transcript pp. 67–69..  FN11. Habeas trial transcript pp. 67–69.

FN12. Habeas trial transcript pp. 62–63..  FN12. Habeas trial transcript pp. 62–63.

FN13. Rule 3.1 Meritorious Claims and Contentions Connecticut Rules of Professional Conduct..  FN13. Rule 3.1 Meritorious Claims and Contentions Connecticut Rules of Professional Conduct.

FN14. Petitioner's Ex. 2 pp. 4–5..  FN14. Petitioner's Ex. 2 pp. 4–5.

FN15. Habeas trial transcript pp. 16–17..  FN15. Habeas trial transcript pp. 16–17.

Santos, Thelma A., J.