Scott Palmenta v. Warden (2012)

MEMORANDUM OF DECISION

I. Procedural History

The petitioner was the defendant in matters pending in the Litchfield Judicial District under docket numbers CR07–124076 and CR07–125614.   At all times relevant to this petition, he was represented by Attorney Christopher Cosgrove, a full-time attorney with the Office of the Public Defender in Litchfield County.   On May 9, 2009, with jury selection looming, the petitioner entered “open” pleas—pleas with no sentencing agreement—to the following charges:  under docket CR07–124076, to Burglary 2nd Degree, in violation of General Statutes § 53a–102, Attempt to Commit Larceny 3rd Degree, in violation of General Statutes §§ 53a–49/53a–124, and Criminal Mischief 2nd Degree, in violation of General Statutes § 53a–116;  under docket CR07–125614, to Burglary 3rd Degree, in violation of General Statutes § 53a–103, Identify Theft, in violation of General Statutes § 53a–129d, and Larceny 5th Degree, in violation of General Statutes § 53a–125a.   All pleas were entered pursuant to the Alford Doctrine.¹  Under both docket numbers, the petitioner also admitted to being a Persistent Serious Felony Offender under a Part B of the information pursuant to General Statutes § 53a–40(c) and (j).²  On August 7, 2009, after hearing argument from the State and defense, the court, Ginnochio, J., sentenced the petitioner to a total effective sentence of 30 years, suspended after 10 years incarceration, followed by 5 years of probation.

The petitioner commenced the present action by filing a petition for writ of habeas corpus on September 16, 2009.   After the appointment of counsel, and several amendments, the operative petition was filed on April 16, 2012 alleging a single count of ineffective assistance of counsel against Attorney Cosgrove.   The respondent filed a reply generally denying the allegations in the petition on April 16, 2012, and the matter was tried before this court on April 19, 2012.

II. Law and Discussion

The specific claim made by the petitioner in this matter is that Attorney Cosgrove failed to provide him accurate advice as to whether Burglary 2nd Degree, one of the charges he was being asked to plead guilty to as part of the plea agreement, would make him eligible for parole after serving 50% or 85% of his sentence.   But for Attorney Cosgrove's misadvice, claims the petitioner, he would have accepted the plea agreement extended to him on January 21, 2009, which was more favorable than the sentence the petitioner ultimately received.³

Some additional background information is necessary to fully understand the petitioner's claim.   Prior to being represented by Attorney Cosgrove, the petitioner had been represented by Attorney Charles Thompson.   While represented by Attorney Thompson, the petitioner appeared before the court, Sheldon, J., on July 15, 2008 for a change of plea on both of his dockets.   After the petitioner had entered his guilty pleas, but before they had been accepted by the court, it became apparent that Attorney Thompson had misadvised the petitioner that the plea agreement was for a total effective sentence of 7 years incarceration followed by 2 years of special parole, when the offer was actually for 9 years of incarceration followed by 6 years of special parole.   The court, Sheldon, J., informed the petitioner of the correct terms of the plea offer on the record, left petitioner's guilty pleas intact, and agreed to continue the matter to give the petitioner an opportunity to decide if he wanted to accept the plea agreement under the corrected terms.  (Petitioner's Exhibit 1;  Transcript of State v. Scott R. Palmenta, July 15, 2009, pp. 11–13.)   When the petitioner was next in court on August 27, 2008, however, he “fired” Attorney Thompson ⁴ and made application for the services of the Public Defender, so the plea agreement was not addressed.   Attorney Cosgrove first appeared in court with the petitioner on September 30, 2008, but requested a continuance to have time to familiarize himself with the substantial discovery in the case, so, again, the plea agreement was not discussed.   Ultimately, the July 15, 2008 plea agreement and the petitioner's guilty pleas were not addressed formally on the record until a court appearance on January 21, 2009, where the petitioner, through Attorney Cosgrove, asked that his prior guilty pleas be vacated and that both cases be set down for a jury trial.⁵

It is the petitioner's claim that he chose to reject a plea deal on January 21, 2009 and have the matters set down for trial because Attorney Cosgrove was unable to provide him with accurate information as to whether pleading guilty to Burglary 2nd Degree, one of the requirements of the plea agreement, would make him eligible for parole after serving 50% of his sentence, the law at the time of the offenses, or 85% of his sentence, the law as modified subsequent to his arrest, but prior to his conviction.   As a result of Attorney Cosgrove's faulty advice, claims the petitioner, he was ultimately forced to accept a much less favorable plea agreement and, as a result, received a harsher prison sentence.   More specifically, the conduct supporting the Burglary 2nd Degree charge for which the petitioner is now incarcerated occurred sometime in or before October 2007.   Public Act 08–1 was passed by the Legislature and became effective on March 1, 2008.   Section 5 of that Public Act reclassified the crime of Burglary 2nd Degree “committed on or after July 1, 1981” under General Statutes § 54–125a from one for which an inmate serving a sentence could be eligible for parole after serving only 50% of his sentence to one for which an inmate would not be eligible for parole until after having served at least 85% of his sentence.⁶  The petitioner claims that Attorney Cosgrove misadvised him that P.A. 08–1, Sec. 5 would be applied to his conviction for Burglary 2nd Degree by the Department of Corrections and the Board of Pardons and Parole, even though the law was not passed until after the crime was committed.   After being sentenced, however, the petitioner asserts that he was informed that he is eligible for parole after serving only 50% of his sentence.   Had he been informed of this by Attorney Cosgrove, claims the petitioner, he would have accepted the July 15, 2008 plea offer, which was still outstanding on January 21, 2009.

“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.  “[T]he performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances.”   Strickland v. Washington, supra, 466 U.S. 688.   Even if the petitioner is able to show that counsel's performance was constitutionally deficient, they must also meet the second prong of the test, which “focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process.”   In other words, in order to satisfy the second prong of the test, the petitioner must show 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.”  Hill v. Lockhart, supra, 474 U.S. 59.  “[W]here a defendant pleads guilty to less favorable terms and claims that ineffective assistance of counsel caused him to miss out on a more favorable earlier plea offer [however] Strickland 's inquiry into whether the result of the proceeding would have been different ․ requires looking not at whether the defendant would have proceeded to trial absent ineffective assistance but whether he would have accepted the offer to plead pursuant to the terms earlier proposed.   In order to complete a showing of Strickland prejudice, defendants who have shown a reasonable probability they would have accepted the earlier plea offer must also show that, if the prosecution had the discretion to cancel it or if the trial court had the discretion to refuse to accept it, there is a reasonable probability neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented.   This further showing is of particular importance because a defendant has no right to be offered a plea ․” (Citations omitted;  internal quotation marks omitted.)   Lafler v. Cooper, 566 U.S. (2012) (slip op. at 12).  “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).

In the present case, the petitioner claims that his attorney's failure to properly advise him regarding parole eligibility constituted deficient performance.  “Guilty pleas must be intelligent, voluntary and knowing ․ A defendant must be aware of all direct consequences of his plea ․ “[T]he scope of direct consequences is very narrow ․ In Connecticut, the direct consequences of a defendant's plea include only the mandatory minimum and maximum possible sentences ․ the maximum possible consecutive sentence ․ the possibility of additional punishment imposed because of previous convictions(s) ․ and the fact that the particular offense does not permit a sentence to be suspended ․ The failure to inform a defendant as to all possible indirect and collateral consequences does not render a plea unintelligent or involuntary in a constitutional sense.”  Hall v. Commissioner of Correction, 124 Conn.App. 778, 784–85, 6 A.3d 827 (2010) (finding no deficiency in counsel's performance, because there is no independent duty for counsel to advise on parole eligibility, and where parole eligibility was never discussed by counsel or the client during the course of the representation).  “Where the petitioner relied on gross misadvice about an indirect consequence, [however,] his plea would have been involuntary, unintelligent and, therefore, invalid ․ Examples of gross misadvice that invalidate a guilty plea include an attorney's poor research and incorrect calculation of a defendant's parole eligibility.'  “ (Quotation marks omitted.)  Hernandez v. Commissioner of Correction, 82 Conn.App. 701, 709, 846 A.2d 889 (2004).  “[W]here trial counsel has rendered gross misadvice on the issue of parole eligibility, and a defendant has relied on that misadvice in entering a guilty plea, the plea is invalid as it was neither voluntary nor intelligent.  Hall v. Commissioner of Correction, supra, 124 Conn.App. 785.

In the present case, therefore, because parole eligibility is an indirect consequence of a plea, the petitioner must show that the information Attorney Cosgrove provided him about the effect of P.A. 08–1, Sec. 5 on his parole eligibility constituted “gross misadvice.”  Id. It is undisputed that one of the many concerns the petitioner expressed to Attorney Cosgrove during the representation was whether P.A. 08–1, Sec. 5 could appropriately apply to his charges, since the law did not come into effect until after the crimes were alleged to have been committed.   This court also finds credible Attorney Cosgrove's testimony that he made significant efforts to legally research the matter, to contact appropriate officials within the Department of Corrections to inquire how P.A. 08–1, Sec. 5 was going to be applied to the petitioner's sentence, and, although his inquiries were not responded to until after the petitioner had entered his guilty pleas, to contact officials from the Board of Pardons and Parole to inquire how they were going to interpret and apply P.A. 08–1.   Through his communications with the Department of Corrections, Attorney Cosgrove was informed, and reported to the petitioner, that Corrections intended interpret the law to apply relevant to date of the petitioner's conviction, meaning that he would not be eligible for parole until he had served 85% of whatever sentence he received.⁷  Notwithstanding, Attorney Cosgrove also conducted his own research into the matter and informed the petitioner that he believed that application of P.A. 08–1, Sec. 5 in his case would likely violate the petitioner's rights against the application of ex post facto laws, but that any such challenge to P.A. 08–1 would have to be taken up only after a conviction was imposed and after the law was actually applied to him in an adverse manner.⁸  The petitioner claims that this advice constituted “gross misadvice” and that what Attorney Cosgrove should have done, notwithstanding the language of P.A. 08–1, Sec. 5, or the information he had received from the Department of Corrections, was to inform the petitioner that he would be eligible for parole after only serving 50% of his sentence under the case of Johnson v. Commissioner of Correction, 258 Conn. 804, 786 A.2d 1091 (2002).

This court does not find the advice provided by Attorney Cosgrove to be “gross misadvice.”   Although no case has specifically set forth a definition for what constitutes “gross misadvice,” a review of the caselaw reveals that it has been used to describe information provided by counsel that was so substantially inaccurate that it deprived the client of an ability to fairly assess the substance of the plea agreement he was entering into and the length of the sentence he was exposed to.  Magana v. Hofbauer, 263 F.3d 542, 550 (6th Cir.2001) (counsels' ignorance of relevant law under which client was charged and resulted in gross misadvice regarding client's actual potential prison exposure);  Hawkins v. Murray, 789 F.Sup. 330, 334–35 and n.11 (E.D.Va.1992) (failing to take affirmative action to advise client that particular charge would make him ineligible for parole supports claim of “gross misadvice” in connection with plea agreement);  Jacobi v. Commonwealth, No.2009 CA–001572–MR (Ky.App.5–6–2011) (advising client that he would be eligible for parole after serving only 20% of his sentence, when he actually would not be eligible until serving 85% based on the charges in the plea agreement support claim of “gross misadvice” and remanded for factual findings);  compare United States v. Baylin, 531 F.Sup. 741, 755 (D.Del.1982) (“Although gross misadvice of counsel leading to the entry of an improvident plea may make out an ineffective assistance of counsel claim, and undermine the voluntariness of the defendant's actions ․ where counsel's assurances are not more than predictions which later prove inaccurate, no evidentiary hearing on the voluntariness of the plea is necessary”;  in case where petitioner admitted he knew that counsel was giving him opinions about his potential for early release and not making promises ).   In the present case, Attorney Cosgrove gave his client accurate and sound legal information—that the Department of Corrections was going to apply the new 85% parole eligibility rule to the petitioner's conviction, but that he thought the petitioner would be able to challenge that as an ex post facto law, but that such a challenge could not come until after he was convicted.

What the petitioner essentially argues, and what his expert witness testified to, is that Attorney Cosgrove should have assured him, guaranteed him, that P.A. 08–1, Sec. 5 would not be applicable to his case, or that, if it were applied to his case, he would be successful if he challenged it.   Nowhere, however, is this court able to find legal support for such a proposition, nor has the petitioner been able to provide one for the court.

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, supra, 397 U.S. 769–70.   In other words, a lawyer's job is to give his client reasonably competent legal advice such as will allow the client to accurately assess his options when deciding whether to accept a plea agreement.  Id. Although not presented in terms the petitioner in the present case may have wanted to hear, that is exactly what his attorney did.   Id. Again, there is nothing in the law this court could find, and nothing presented by the petitioner, supporting the position that counsel is required to issue something akin to a “guarantee” that a matter will turn out one way or another.  Id.

Based on the above, the court finds no deficiency in the performance of Attorney Cosgrove in the present matter.  Hill v. Lockhart, supra, 474 U.S. 56.   Since there is no finding of deficient performance, it is not necessary for the court to address the matter of prejudice.  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 decision, then counsel shall prepare and submit a judgment file to the clerk within thirty (30) days.

Hon. John M. Newson

FOOTNOTES

FN1. North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (“An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime”)..  FN1. North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (“An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime”).

FN2. Sec. 53a–40.   Persistent offenders:  Definitions;  defense;  authorized sentences;  procedure ․(c) A persistent serious felony offender is a person who (1) stands convicted of a felony, and (2) has been, prior to the commission of the present felony, convicted of and imprisoned under an imposed term of more than one year or of death, in this state or in any other state or in a federal correctional institution, for a crime.   This subsection shall not apply where the present conviction is for a crime enumerated in subdivision (1) of subsection (a) of this section and the prior conviction was for a crime other than those enumerated in subsection (a) of this section ․(j) When any person has been found to be a persistent serious felony offender, the court in lieu of imposing the sentence of imprisonment authorized by section 53a–35 for the crime of which such person presently stands convicted, or authorized by section 53a–35a if the crime of which such person presently stands convicted was committed on or after July 1, 1981, may impose the sentence of imprisonment authorized by said section for the next more serious degree of felony..  FN2. Sec. 53a–40.   Persistent offenders:  Definitions;  defense;  authorized sentences;  procedure ․(c) A persistent serious felony offender is a person who (1) stands convicted of a felony, and (2) has been, prior to the commission of the present felony, convicted of and imprisoned under an imposed term of more than one year or of death, in this state or in any other state or in a federal correctional institution, for a crime.   This subsection shall not apply where the present conviction is for a crime enumerated in subdivision (1) of subsection (a) of this section and the prior conviction was for a crime other than those enumerated in subsection (a) of this section ․(j) When any person has been found to be a persistent serious felony offender, the court in lieu of imposing the sentence of imprisonment authorized by section 53a–35 for the crime of which such person presently stands convicted, or authorized by section 53a–35a if the crime of which such person presently stands convicted was committed on or after July 1, 1981, may impose the sentence of imprisonment authorized by said section for the next more serious degree of felony.

FN3. The record and evidence reflect that there were numerous offers extended to the petitioner throughout the course of the case.   On July 9, 2008, an offer of 9 years followed by 6 years of special parole was extended, and letter from Attorney Cosgrove dated December 3, 2008 indicates that an alternative offer of pleading with no agreement, but a range limitation of between 7 and 15 years with a right to argue was also on the table for consideration (Petitioner's Exhibit 13), either to be served concurrently with sentences the petitioner was already serving.   Finally, evidence presented at trial indicates that another offer of 6 years followed by 10 years of special parole to be served consecutively to the other sentences the petitioner was already serving was conveyed in December 2008.   From the evidence presented during trial, it appears that each of these alternative offers was still open for the petitioner's consideration on January 21, 2009, however, evidence at trial indicates that the pretrial offer the petitioner now complains he lost the benefit of was the one made on July 15, 2008 of 9 years followed by 6 special parole..  FN3. The record and evidence reflect that there were numerous offers extended to the petitioner throughout the course of the case.   On July 9, 2008, an offer of 9 years followed by 6 years of special parole was extended, and letter from Attorney Cosgrove dated December 3, 2008 indicates that an alternative offer of pleading with no agreement, but a range limitation of between 7 and 15 years with a right to argue was also on the table for consideration (Petitioner's Exhibit 13), either to be served concurrently with sentences the petitioner was already serving.   Finally, evidence presented at trial indicates that another offer of 6 years followed by 10 years of special parole to be served consecutively to the other sentences the petitioner was already serving was conveyed in December 2008.   From the evidence presented during trial, it appears that each of these alternative offers was still open for the petitioner's consideration on January 21, 2009, however, evidence at trial indicates that the pretrial offer the petitioner now complains he lost the benefit of was the one made on July 15, 2008 of 9 years followed by 6 special parole.

FN4. Because of the petitioner's stated displeasure with the representation and at his insistence, Attorney Thompson was allowed to withdraw from the representation..  FN4. Because of the petitioner's stated displeasure with the representation and at his insistence, Attorney Thompson was allowed to withdraw from the representation.

FN5. Petitioner's Exhibit 5, Transcript of State v. Scott R. Palmenta, January 21, 2009..  FN5. Petitioner's Exhibit 5, Transcript of State v. Scott R. Palmenta, January 21, 2009.

FN6. Sec. 5. Subsection (b) of section 54–125a of the general statutes is repealed and the following is substituted in lieu thereof (Effective March 1, 2008 ):(b)(1) No person convicted of any of the following offenses, which was committed on or after July 1, 1981, shall be eligible for parole under subsection (a) of this section:  Capital felony, as provided in section 53a–54b, felony murder, as provided in section 53a–54c, arson murder, as provided in section 53a–54d, murder, as provided in section 53a–54a, or aggravated sexual assault in the first degree, as provided in section 53a–70a.  (2) A person convicted of (A) a violation of section 1 of this act or section 53a–102, as amended by this act, or (B) an offense, other than an offense specified in subdivision (1) of this subsection, where the underlying facts and circumstances of the offense involve the use, attempted use or threatened use of physical force against another person shall be ineligible for parole under subsection (a) of this section until such person has served not less than eighty-five per cent of the definite sentence imposed.  (Italics in original, underline in original.).  FN6. Sec. 5. Subsection (b) of section 54–125a of the general statutes is repealed and the following is substituted in lieu thereof (Effective March 1, 2008 ):(b)(1) No person convicted of any of the following offenses, which was committed on or after July 1, 1981, shall be eligible for parole under subsection (a) of this section:  Capital felony, as provided in section 53a–54b, felony murder, as provided in section 53a–54c, arson murder, as provided in section 53a–54d, murder, as provided in section 53a–54a, or aggravated sexual assault in the first degree, as provided in section 53a–70a.  (2) A person convicted of (A) a violation of section 1 of this act or section 53a–102, as amended by this act, or (B) an offense, other than an offense specified in subdivision (1) of this subsection, where the underlying facts and circumstances of the offense involve the use, attempted use or threatened use of physical force against another person shall be ineligible for parole under subsection (a) of this section until such person has served not less than eighty-five per cent of the definite sentence imposed.  (Italics in original, underline in original.)

FN7. Additionally, after the petitioner entered his pleas, but prior to his sentencing, Attorney Cosgrove finally heard back from the legislative liaison for the Board of Pardons and Parole, who informed him that, since P.A. 08–1, Sec. 5 had not been challenged, Parole would consider it applicable to the petitioner's convictions.  (Petitioner's Exhibit 18, Letter from Attorney Cosgrove, May 13, 2009.).  FN7. Additionally, after the petitioner entered his pleas, but prior to his sentencing, Attorney Cosgrove finally heard back from the legislative liaison for the Board of Pardons and Parole, who informed him that, since P.A. 08–1, Sec. 5 had not been challenged, Parole would consider it applicable to the petitioner's convictions.  (Petitioner's Exhibit 18, Letter from Attorney Cosgrove, May 13, 2009.)

FN8. Although the petitioner denies that such a conversation ever occurred with Attorney Cosgrove, Attorney Cosgrove mentions the discussions he'd had with the petitioner about this issue during the petitioner's change of plea on May 8, 2009 and the petitioner, who is not shy about challenging his attorney's representations in court, not only fails to challenge these representations.  (Petitioner's Exhibit 7, Transcript of State v. Scott R. Palmenta, May 8, 2009, pp. 15, lns. 2–16.)   Additionally, the petitioner himself engages in dialogue with the court which makes it clear that the matter had been discussed with him at length prior to that court date, at one point stating, “I mean, it's just something I brought up with [Attorney Cosgrove] over and over and one of the biggest factors on, um, you know, me even getting to this far ․” (Id., pp. 13–18.).  FN8. Although the petitioner denies that such a conversation ever occurred with Attorney Cosgrove, Attorney Cosgrove mentions the discussions he'd had with the petitioner about this issue during the petitioner's change of plea on May 8, 2009 and the petitioner, who is not shy about challenging his attorney's representations in court, not only fails to challenge these representations.  (Petitioner's Exhibit 7, Transcript of State v. Scott R. Palmenta, May 8, 2009, pp. 15, lns. 2–16.)   Additionally, the petitioner himself engages in dialogue with the court which makes it clear that the matter had been discussed with him at length prior to that court date, at one point stating, “I mean, it's just something I brought up with [Attorney Cosgrove] over and over and one of the biggest factors on, um, you know, me even getting to this far ․” (Id., pp. 13–18.)

Newson, John M., J.