261215 v. Commissioner of Corrections (2012)

MEMORANDUM OF DECISION

The petitioner, Luis Perez, brings this petition for a writ of habeas corpus alleging that his trial attorneys were ineffective in representing him at his violation of probation (VOP) hearing and with respect to his guilty plea.   But for his counsels' deficient performance, the petitioner claims that he would have prevailed at the violation of probation hearing, would not have pleaded guilty and would have insisted on going to trial.   The court finds all of the issues for the respondent and denies the petition.

The court finds the following facts.

On May 25, 2006, the trial court, Iannotti, J., sentenced the petitioner to ten (10) years incarceration suspended after three and one-half (3 1/2) years, followed by three (3) years probation on the charge of attempted assault in the first degree.   On November 7 and 19, 2008, the defendant read and signed the standard and special conditions of his probation.   One of the standard conditions of the petitioner's probation was that he not violate any law of this state or the United States.   After serving the prison portion of this sentence, on November 19, 2008, the petitioner was released and began to serve the probationary portion of his sentence.

Approximately two months later, on January 6, 2009, the petitioner was arrested and charged with burglary in the first degree in violation of General Statutes § 53a–101, assault in the third degree in violation of General Statutes § 53a–61, threatening in the second degree in violation of General Statutes § 53a–62 and harassment in the first degree in violation of General Statutes § 53a–102b.   The 2009 arrest stemmed from an incident that occurred on December 18, 2008 at the residence of the petitioner's cousin, Cyneice Cruz–Soto, the victim.   According to the victim, on that date, she and her sister, Christine Soto, had an argument on the telephone.   Later that evening, the victim's sister and the petitioner went to the victim's residence to confront her, knocked on the door, and then the petitioner kicked in the door.   The petitioner and Soto then entered the victim's residence and assaulted her by kicking and punching her in the face and stomach.   Soto was arrested that evening and the petitioner was arrested on January 9, 2009 by warrant.   On March 4, 2009, the state filed a Part B information charging the petitioner with being a persistent dangerous felony offender in violation of General Statutes § 53a–40(a) on the basis that he had been previously convicted of criminal attempt at assault in the first degree, a felony and served a sentence of more than one year.

Based on the January 2009 arrest, on March 4, 2009, the petitioner was arrested by warrant and charged with violating the terms of his probation on the 2006 sentence.   The basis for the violation of probation was the petitioner's January 6, 2009 arrest for breaking into the victim's home and assaulting her on December 18, 2008.   At the time of the petitioner's arrest for the probation violation, he owed six and one-half years (6 1/2) on his 2006 sentence.

All charges were pending in Waterbury superior court.

The petitioner was assigned a public defender, but later hired Attorney Andrea Anderson to represent him on both files.   When Anderson received the files from the public defender, she learned that a Part B information had been filed by the state.   The petitioner's public defender informed Attorney Anderson that she had explained the Part B information to the petitioner when it was filed in March 2009.   Attorney Anderson also discussed the Part B information with the petitioner when she appeared in the case and believed that he understood that additional charge and its legal ramifications.

Plea negotiations between the state and the public defender had resulted in an offer of ten (10) years followed by ten (10) years special parole.   Attorney Anderson was successful in obtaining a better offer on both files of ten years (10) with no special parole.   Attorney Anderson explained to the petitioner that if he rejected the ten year plea offer, the court would schedule the VOP for a hearing and could receive six and one-half years to serve.   At the time, the petitioner's exposure on both files was approximately 46 years, which Anderson explained to the petitioner.   The petitioner rejected the 10 year offer, and opted for a hearing on the VOP.

Attorney Anderson contacted Attorney David Feliu and asked him to assist her in trying the violation of probation because he had more criminal trial experience.   Both Attorney Anderson and Attorney Feliu prepared extensively for the hearing.   Attorney Anderson employed an investigator, met with the petitioner and numerous witnesses, went to the scene of the incident and reviewed all of the police reports, witness statements, photographs and medical reports.   When Feliu appeared in the case, he reviewed Anderson's entire file including her notes of interviews, witness statements, and police reports.   Feliu was lead counsel during the hearing and believed that he was prepared for the hearing.

On August 27, 2009, the trial court conducted the hearing on the VOP charge.   During the adjudication stage of the hearing to determine if the petitioner had violated his probation by violating any law of this state by his conduct on December 18, the state offered the testimony of the petitioner's probation officer, Matthew Generali, the victim, and one of the responding police officers, Hallock Yocher.   The petitioner's trial counsel cross-examined each of these witnesses.   Through his cross-examination of the victim, Attorney Feliu brought out a number of inconsistencies in her statements, that she had a diagnosis of bipolar disorder, that she did not get along with her sister and that her family did not favor her relationship with her boyfriend.   During his cross-examination of Officer Yocher, Attorney Feliu again brought out inconsistencies in the victim's statements.

The petitioner offered testimony from the victim's mother, Isabel Cole, her aunt, Maribell Sarvis, and the victim's sister, and the petitioner's co-defendant.   Neither the victim's mother nor her aunt were present at the victim's residence on December 18, 2008 and therefore could not offer any firsthand accounts of the incident.   They were offered as character witnesses as to the victim's reputation for untruthfulness, as well as the family disharmony.   Soto testified to her version of events that the victim opened the door when she and the petitioner arrived, that they did not go in the house and that Soto and the victim had a physical altercation and that the petitioner was there but not involved in the fight.   She testified that she brought the petitioner with her because she was afraid of the victim's boyfriend.   Both of the petitioner's trial attorneys testified at the habeas trial that petitioner's witnesses did not come across well in court.

The state's attorney and the petitioner's counsel both made closing arguments at the conclusion of the evidentiary hearing.   Attorney Feliu summed up the petitioner's theory of the case, the contradictions in the state's case and the victim's version of events, and argued that Soto was the more credible witness.

After hearing all of the evidence, the trial court determined that the state had proven by a fair preponderance of the evidence that the petitioner had violated his probation.   In its oral decision, the trial court found that “what this really comes down to is a credibility question.”   The court noted certain inconsistencies in the victim's statements, but found her testimony consistent in that petitioner arrived at her home with her sister, kicked in her door and assaulted her.   The trial court also found that the victim's testimony was corroborated by Officer Yocher's testimony.   With respect to the petitioner's witnesses, who were all related him, the court pointed out that they all had a motive to protect the petitioner.

In particular, the trial court found that the case:

[H]inges on the testimony of the witness who was probably the shortest witness in this case and that's Officer Yocher.   Officer Yocher testified that he arrived shortly after the 911 call.   Officer Yocher's job simply was to come there, investigate the matter and make an arrest if he found that it was warranted.   Officer Yocher's testimony was that upon arrival he found the door kicked in at the bottom, damaged consistent with the testimony of [the victim], who indicated that it was, in fact, the accused who kicked in that door purportedly wearing the Timberland boots, kicked in the door and put a hole in the door and that's how entry was secured, and the accused then began striking [the victim] after that occurred.

Officer Yocher testified that the door was, in fact, broken upon his arrival just minutes later, yet, the testimony of Ms. Christine Soto was she gently knocked on the door, her sister opened it, the door was not broken, there was no testimony with regard to the door being kicked in which is completely inconsistent with the testimony of the victim and the police officer who arrived minutes later and in fact found the door in a broken state.

The Court has to judge the credibility of [sic] as a whole of all the witnesses.   Judging the credibility of the witnesses as a whole, somewhat, largely based upon Officer Yocher's testimony, finds the testimony of the victim, Senise Soto, to be the most consistent testimony with regard to her testimony versus her aunt, her mother and her sister, because that thread of evidence of the broken door brings the rest of her testimony into focus as to what occurred on that particular evening.

Mr. Perez was on probation.   The testimony of the victim is consistent with how the event occurred that evening and, in fact, her door was broken, entry was not granted to anybody, but forced in, and that she was struck by the accused, and at least her sister, if not the accused, her sister and others.

Based upon the balancing test to the credibility weighing of all the witnesses in this case and the reasons stated by the Court, the Court finds that the state has met the burden by a preponderance of the evidence and in fact, Mr. Perez has violated the terms of his probation.

After hearing argument from the parties regarding the disposition, the trial court revoked the petitioner's probation and sentenced him to a period of six (6) years to serve.

After the petitioner was sentenced on the VOP, he began doing “dead” time on the remaining charges.   The petitioner's exposure on the remaining charges was approximately 40 years.   The state and Anderson resumed plea negotiations in an attempt to resolve the remaining charges.   The court offered the petitioner ten (10) years incarceration to be served concurrent with the sentence he received on the probation violation and jail credit back to his arrest on January 6, 2009.   Attorney Anderson told the petitioner that if he did not accept the plea offer of 10 years concurrent, he faced a possible sentence of 40 years on the remaining charges.   She explained the charges and gave him copies of the relevant statutes.   Although Attorney Anderson did not give the petitioner a copy of General Statutes § 53a–40(a), the persistent felony offender statute, the court finds that Attorney Anderson explained this charge and its legal ramifications to the petitioner.

On September 17, 2009, the petitioner accepted the offer, and pleaded guilty under the Alford doctrine to burglary in the first degree, assault in the third degree and being a persistent dangerous felony offender.   This charge was read to the petitioner outside of the court's presence prior to his plea.   The trial court's canvass of the petitioner included questions regarding the persistent felony offender charge, to which the petitioner responded that he understood.

Additional facts will be discussed in connection with each claim as necessary.

On December 2, 2009, the petitioner brought this petition for a writ of habeas corpus.   The amended petition is in three counts.   Count one alleges that attorneys Andrea Anderson's and David N. Feliu's conduct at the petitioner's VOP hearing was deficient and that but for their deficient conduct he would have prevailed and the court would have found that he did not violate his probation.   The amended petitioner asserts sixteen ways in which counsels' conduct was deficient, but in his brief, the petitioner consolidates those claims, and claims to have proved them, as follows:

a.  That counsel did not adequately prepare for the hearing and did not articulate the theory of the defense in a persuasive manner.

b. That Attorney Feliu did not adequately cross-examine the victim, Cyniece Cruz–Soto, and did not present evidence that would have refuted her version of the incident.

c. Counsel failed to appreciate that the state's evidence of certain 911 calls showed that the incident could not have occurred in the manner described by the victim and failed to bring this to the court's attention.

d. Counsel failed to present evidence to prove that the door was never damaged as described by the victim.

Count two pertains to the petitioner's guilty plea and asserts that Attorney Anderson failed to properly advise the petitioner regarding the Part B information in that she failed to advise him regarding (1) the means by which he could be convicted of that charge if he went to trial and (2) the range of penalties he faced if convicted.

In count three the petitioner alleges that his guilty plea was not knowing, intelligent and voluntary because he lacked an accurate understanding regarding the Part B information.

The habeas trial was conducted on April 26, 2012 and May 8, 2012.   The petitioner offered the testimony of a number of witnesses and introduced a number of exhibits.   Both parties filed post-trial briefs.

DISCUSSION

To establish a claim of ineffective assistance of trial counsel, the petitioner has the burden to establish 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.”  (Emphasis in original.)  Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008);  Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).  “To satisfy the performance prong, a claimant must demonstrate that ‘counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed ․ by the Sixth Amendment.’  “ Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, 466 U.S. 687.   It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action.   Rather petitioner must prove, by a preponderance of the evidence, that his counsel's acts or omissions were so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment, and as a result, he was deprived of a fair trial.  Harris v. Commissioner of Correction, 107 Conn.App. 833, 845–46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008).   Under the second prong of the test, the prejudice prong, the petitioner must show that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial the result of which is reliable.  Strickland v. Washington, supra, 466 U.S. 687.

When assessing trial 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 ․” Strickland v. Washington, supra, 466 U.S. 690.   The United States Supreme Court explained:

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.   Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;  that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy ․ There are countless ways to provide effective assistance in any given case.   Even the best criminal defense attorneys would not defend a particular client in the same way.

(Internal quotation marks omitted.)  Id.

Ultimately, “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”  Strickland v. Washington, supra, 466 U.S. 686.

A. Violation of Probation Claims

In the first count of the amended complaint, the petitioner claims that his attorneys were ineffective in their representation of him during the hearing on the VOP charge because they failed to adequately prepare, for the hearing, failed to articulate the theory of the defense, failed to adequately cross-examine the victim, and failed to produce evidence that the door was not damaged “as described by” the victim.   The court finds that the petitioner has failed to prove these claims.

Having heard the testimony of the petitioner's trial counsel, and read transcripts of the violation of probation hearing, the court finds that the attorneys thoroughly investigated the case, prepared for the hearing, prepared their witnesses and provided and explained their theory of the defense during cross-examination of the witnesses, and in Attorney Feliu's closing argument.   The court finds that the petitioner has failed to prove that trial counsels' conduct was deficient as to these claims.  “[T]he right to counsel is the right to effective assistance, and not the right to perfect representation.   Commissioner of Correction v. Rodriquez, 222 Conn. 469, 478, 610 A.2d 631 (1992).”  Michael T. v. Commissioner of Correction, 307 Conn. 84, 101 (2012).”   See also Cape v. Francis, 741 F.2d 1287, 1302 (11th Cir.1984), cert. denied, 474 U.S. 911, 106 S.Ct. 281, 88 L.Ed.2d 245 (1985) (“One may always identify shortcomings, but perfection is not the standard of effective assistance.”)

On a charge of a violation of probation, the state need only prove and the court need only find, after an adversarial evidentiary hearing, that the petitioner violated a condition of his probation by a fair preponderance of the evidence.  State v. Davis, 229 Conn. 285, 295 (1994);  State v. Durant, 94 Conn.App. 219, 225, (206) aff'd 281 Conn. 548 (2007).   The burden of proof is not beyond a reasonable doubt as in the case of a criminal prosecution.  State v. Davis, supra, 229 Conn. 295.   In State v. Davis, supra, 229 Conn. 293–4, the Supreme Court explained the differing burdens of proof as follows:  “For example, the proof beyond a reasonable doubt standard implies that the party on whom that burden is imposed should bear almost the entire risk of error ․ Proof by clear and convincing evidence is an intermediate standard generally used in civil cases involving allegations of fraud or some other quasicriminal wrongdoing, or when particularly important individual rights are involved ․ The preponderance of the evidence standard indicates that the litigants should share equally the risk of error ․ because the interests at stake have roughly equal societal importance.”  (Internal and footnotes omitted.)   Proof by a fair preponderance of evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation.  Id., 302.

In this case, the trial court's decision turned on credibility assessments.   If the court believed the victim's version of events—that the petitioner entered the victim's home without permission, kicked in the door and assaulted her—then it could easily find by a fair preponderance of the evidence that the petitioner had violated his probation by violating the standard condition of probation that he not violate any laws of this state.   Although the court acknowledged that the victim's testimony was inconsistent at times, facts established by Attorney Feliu on cross-examination, it found her testimony consistent on the key facts that the petitioner kicked in the victim's door and assaulted her.   In addition, the trial court credited the testimony of the unbiased responding police officer who arrived on the scene minutes after the assault to witness the damage to the door and the petitioner's injuries.   Officer Yocher's testimony corroborated the victim's testimony and undermined the testimony of Soto that she and the petitioner knocked gently on the door had not damaged it.

The allegations of deficient performance raised by the petitioner in this case, failure to properly cross-examine the victim or better prepare the petitioner's witnesses, would not have been sufficient to alter the outcome of the proceeding, as none of these claims are addressed to Officer Yocher's testimony, which was key to the trial court's credibility determinations.   Thus as to these claims, the petitioner has not proved prejudice.

On the key issue of the damaged door, the petitioner claims that his trial attorneys' conduct was deficient because they did not call as a witness at the violation of probation hearing, John Ellison, the victim's landlord in December 2008, who he claims would have impeached the victim's testimony by testifying that the door to the victim's residence has not been replaced.   The court rejects this claim.

Mr. Ellison, who testified at the habeas hearing, had no recollection of the events of 2008 and could not recall if he had been asked in 2008 to fix the door, or if he had, in fact, fixed it.   The best he could say was that he visited the residence a day or so before the habeas hearing and that the door that is there now appeared to be the same door that was there in December 2008.   Such testimony would not have been helpful or relevant to the trial court's decision in August 2009.   In addition, at the habeas trial, the petitioner called as a witness the victim's boyfriend, Alberto Cruz, who testified that he arrived at the victim's residence immediately after the incident and found the victim injured and the door damaged.   He further testified that it was he who fixed the door after the incident.   Such testimony, had it been offered at the violation, of probation hearing, would have only served to corroborate the victim's and Officer Yocher's testimony that the door was damaged, and undermined the testimony of the victim's sister.   Accordingly, as to this claim, the petitioner has failed to proof both prongs of the Strickland test.

B. The Guilty Plea

In count two the petitioner asserts that Attorney Anderson's representation was deficient in advising the petitioner regarding his decision to plead guilty to ten years concurrent and that he was prejudiced by her misconduct.   In particular, the petitioner claims that Attorney Anderson failed to properly advise the petitioner regarding the implications of the Part B information and his exposure if convicted.   The court is not persuaded.

It is now well established that “[a] criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings.  Strickland v. Washington, [466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ].   This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution.”  Copas v. Commissioner of Correction, 234 Conn. 139, 153–54, 662 A.2d 718 (1995).   The United States Supreme Court has recently held that pretrial negotiations implicating the decision whether to plead guilty is a critical stage in criminal proceedings for purposes of the sixth amendment right to the effective assistance of counsel.   See Missouri v. Frye, 566 U.S. (2012);  Lafler v. Cooper, 566 U.S. (2012);  Padilla v. Kentucky, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).  “In today's criminal justice system ․ the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.”  Missouri v. Frye, supra, 566 U.S. Similarly, “[o]ur Supreme Court has recognized that pretrial negotiations implicating the decision of whether to plead guilty is a critical stage, and, therefore, a defendant is entitled to adequate and effective assistance of counsel at this juncture of the criminal proceedings.   Copas v. Commissioner of Correction, [supra, 234 Conn. 153].”  Ebron v. Commissioner of Correction, 120 Conn.App. 560, 567, 992 A.2d 1200, affirmed in part, reversed in part, 307 Conn. 342, 363–64 (2012).   The decision to plead guilty is “ordinarily the most important single decision in any criminal case.”  (Internal quotation marks omitted.)  Ebron v. Commissioner of Correction, supra, 120 Conn.App. 572.

“During plea negotiations defendants are entitled to the effective assistance of competent counsel.”  (Internal quotation marks omitted.)  Lafler v. Cooper, supra, 566 U.S. “Anything less ․ might deny a defendant effective representation by counsel at the only stage when legal aid and advice would help him.”  (Internal quotation marks omitted.)  Missouri v. Frye, supra, 566 U.S.

“Although this decision [whether to plead guilty] is ultimately made by the defendant, the defendant's attorney must make an informed evaluation of the options and determine 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, the evidence and the risks and probable outcome of a trial.   The right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction.”   Copas v. Commissioner, supra, 234 Conn. 154.

“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.’  North Carolina v. Alford, 400 U.S. 25, 31 [91 S.Ct. 160, 27 L.Ed.2d 162 (1970) ];  see Boykin v. Alabama, 395 U.S. 238, 242 [89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) ];  Machibroda v. United States, 368 U.S. 487, 493 [82 S.Ct. 510, 7 L.Ed.2d 473 (1962) ].”  Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

To establish his claim of ineffective assistance, the petitioner has the burden to show 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.”  (Emphasis in original.)  Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008).  “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.’   “ Id., 576, quoting Strickland v. Washington, supra, 466 U.S. 687.   With respect to the prejudice prong for claims of ineffective assistance when the conviction resulted from a guilty plea, the petitioner 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.’  “ Johnson v. Commissioner of Correction, supra, 576, quoting Hill v. Lockhart, supra, 474 U.S. 59.

As to the performance prong, the court credits the testimony of Attorney Anderson both that she discussed the Part B information with the petitioner and explained its legal ramifications.¹  In addition, Attorney Anderson also told the petitioner that the state's attorney could amend the charges which would expose the petitioner to more jail time.   The court does not credit the petitioner's claim that Attorney Anderson told him that even if he were acquitted of the burglary charge, he would be subject to the enhanced sentence as a persistent serious felony offender under the Part B information.

The petitioner was fully canvassed on his plea, including his plea to burglary in the first degree, the mandatory minimum, and the Part B information.   In particular, prior to the plea, with the petitioner present, Judge Damiani explained:

What it comes out to be is—He's going to be pleading on the burglary one.   It's a class B felony:  twenty years in jail and/or a $15,000 fine.   He's pleading under subsection two, not subsection one which carries a mandatory five years in jail.   Because he's a persistent dangerous felony offender they're going to put him to plea on—if he were pleading to the subsection one, then it'd be a mandatory minimum of ten years;  twice the minimum you'd have to get and no more than twice the maximum.   Here it's going to come out to be is that—The minimum here would be one year, because a Class B Felony, not less than one nor more than twenty.   So, as a persistent dangerous felony offender he'd be getting the burglary one, the persistent, he'd get ten years of which two year can't be suspended or reduced by me.

The court also explained on the record, as Attorney Anderson had done, that the state had been considering amending the charge to burglary with a dangerous instrument, a shod foot, and that would require a mandatory minimum of five years, rather than two.   The court also explained that since the petitioner had been sentenced on the VOP in August of 2009, he had been doing dead time on the burglary and assault charges, and the court's offer of ten years concurrent included jail credit back to the VOP arrest in January 2009.

During the plea canvass, the court specifically explained and the petitioner responded as follows:

THE COURT:  You're now being charged with a—being a persistent, dangerous, felony offender in violation of 53a–40a, in that on May 25, 2006, you were convicted of the offense of criminal attempted assault one, and you were sentenced to the custody of the Commissioner of Corrections for ten after forty-two months.   And being a persistent dangerous felony offender, do you plead guilty or not guilty?

THE DEFENDANT:  Guilty, Your Honor.

THE COURT:  Now, that means that based upon that, your maximum penalty would be forty years in jail, of which two years is mandatory.   Do you understand that, sir?

THE DEFENDANT:  Yes, your Honor.

THE COURT:  Now, you in fact were convicted of attempted assault one before, right?

THE DEFENDANT:  Yes, Your Honor.

When asked if he understood all of the court's questions, the petitioner indicated that he did.   A court may properly rely on the responses of the petitioner at the time he responded to the trial court's plea canvass.   Toles v. Commissioner of Correction, 113 Conn.App. 717, 967 A.2d 576, cert. denied, 293 Conn. 906, 978 A.2d 1114 (2009).

The court finds that the petitioner has failed to prove that Attorney Anderson's representation in advising the petitioner regarding his guilty plea fell below an objective standard of reasonableness.

Even if attorney Anderson's conduct was deficient, which the court finds it was not, the court finds that the petitioner has failed to meet his burden that he was prejudiced.   Under the prejudice prong, the petitioner has the burden to show that but for his attorney's unprofessional errors, he would not have pleaded guilty and would have insisted on going to trial.   See Hill v. Lockhart, supra, 474 U.S. 59;  Johnson v. Commissioner of Correction, supra, 285 Conn. 576;  Copas v. Commissioner of Correction, supra, 234 Conn. 151.

In support of the petitioner's claim of prejudice, he offers his own testimony that had the Part B charge been adequately explained to him he would not have pleaded guilty but would have insisted on going to trial.   The court does not find the petitioner's testimony credible.

At the time the court made its offer of ten years concurrent, the petitioner had been sentenced to and was already serving a six-year sentence on the VOP. Upon being sentenced on that charge, the petitioner's pre-conviction jail credit was applied to the VOP sentence, and he was doing dead time on the assault/burglary charges.   The petitioner's exposure on the assault/burglary was 40 years due to the Part B enhancement.   The petitioner had a significant violent felony history that was known to the court and would be made known to any sentencing judge after a trial.   In view of this, the court's offer of ten years concurrent plus application of the approximately nine months of jail credit was a very reasonable offer under the circumstances.   In essence, since the petitioner was already serving six years on the VOP, he was receiving only four years additional time (and less with the jail credit), for the new and serious charges.   Because the petitioner maintained his innocence, he was allowed to plead guilty under the Alford doctrine.

Based on his testimony at the habeas trial, the petitioner appeared to be under the impression that he could “beat” the new charges and that the state could not prove the burglary charge.   If the state could not prove the burglary charge, then he would not be exposed to the 40 years in jail, if convicted after a jury trial.   He claims this was because he was innocent of the charges.   However, the state had significant evidence to establish the burglary charge, and in particular, that the petitioner went with Soto to confront the victim, gained entrance to the victim's residence by kicking in the door for the purpose of assaulting her, and did in fact assault her.   The petitioner was not a novice to the criminal justice system having been convicted of a serious violent felony in the past, and the court believes was aware of the risks of going to trial.   He accepted the plea offered to him because it was a good offer.   He would not have risked going to trial and receiving a potentially greater sentence.

Thus, the petitioner has failed to prove prejudice.

C. Due Process Claim

Although the petitioner asserts a separate due process claim that his plea was not knowing intelligent and voluntary, this claim is premised on the same allegation as count two—that the petitioner did not understand the ramifications of the Part B information.   The court has already determined above that the petitioner has failed to prove this assertion.   See supra.   Accordingly, the court rejects this claim.²

CONCLUSION

For all of the forgoing reasons, the petition is denied.

Cobb, J.

FOOTNOTES

FN1. The petitioner makes much of a post-conviction letter that the petitioner wrote to Attorney Anderson regarding the Part B information and her response, in which she incorrectly stated that the petitioner did not plead guilty as a persistent felony offender.   Attorney Anderson explained at the habeas trial that her response was written too quickly before a vacation, and that she attempted to correct that mistake but habeas counsel advised her not to do so.   The court finds this letter irrelevant to this habeas claim.   It does not support the petitioner claim and what is relevant here is the advice that Attorney Anderson gave the petitioner before his plea, not afterward..  FN1. The petitioner makes much of a post-conviction letter that the petitioner wrote to Attorney Anderson regarding the Part B information and her response, in which she incorrectly stated that the petitioner did not plead guilty as a persistent felony offender.   Attorney Anderson explained at the habeas trial that her response was written too quickly before a vacation, and that she attempted to correct that mistake but habeas counsel advised her not to do so.   The court finds this letter irrelevant to this habeas claim.   It does not support the petitioner claim and what is relevant here is the advice that Attorney Anderson gave the petitioner before his plea, not afterward.

FN2. It is unnecessary for the court to consider the respondent's jurisdictional claim to the assault conviction since the court has denied the petition in its entirety..  FN2. It is unnecessary for the court to consider the respondent's jurisdictional claim to the assault conviction since the court has denied the petition in its entirety.

Cobb, Susan Quinn, J.