Deonarine Persaud v. Warden (2013)

MEMORANDUM OF DECISION

THE COURT:  The Court is prepared to issue its decision.   The petitioner, Deonarine Persaud, brings this petition for a writ of habeas corpus claiming that his trial attorney was ineffective and that there was no discussion between Attorney Canace, who represented him during the trial, and the petitioner relative to the immigration consequences of his plea and that he also did not warn him about the immigration consequences.   Had they done so, he claims that he would not have pleaded guilty but would have elected to proceed to trial.   The Court finds that the petitioner has failed to prove his claim and therefore denies the petition.

The petitioner was arrested on November 9, 2009, and charged with assault in the third degree in violation of Connecticut General Statute 53a–61(a)(1), risk of injury to a minor in violation of Section 53–21.   There were two other charges, threatening in the second and also interfering with a police officer.   On October 22, 2010, the petitioner pleaded guilty to one count of risk of injury to a minor in violation of General Statute 53–21 and received a three-year suspended sentence followed by probation for two years and he also pleaded guilty to assault in the third degree and received a concurrent sentence of one year execution suspended, two years of probation;  total effective sentence of three years execution suspended, followed by two years of probation.   During the plea canvass, The Court advised the petitioner that his conviction could result in immigration consequences and on November 9, 2010, The Court sentenced the petitioner to those three years followed by two years of probation.   At the time of his plea, the petitioner was represented by Attorney Frank Canace.

The petitioner is a permanent resident of the United States, but a citizen of Guyana.   The Department of Homeland Security has issued an immigration detainer against the petitioner and on April 26, 2012, the petitioner brought this petition for writ habeas corpus claiming that his trial attorney failed to advise him about the immigration consequences of his plea.   Today, the court held a trial in this case in which the petitioner presented testimony by himself by a videoconference, as well as his wife, Mrs. Persaud.   The respondent introduced a number of exhibits as well as the testimony of Attorney Canace.

It is well established that a criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of a criminal proceeding, and I'm citing Strickland v. Washington, 466 U.S. 668.   This right rises out of the Sixth and Fourteenth Amendments of the United States Constitution, Article I, Section 8 of the Connecticut Constitution.   It is because of the importance of pretrial negotiations to our system of justice that the United States Supreme Court has held at pretrial negotiations implicating the decision as to whether to plead guilty are a critical stage in criminal proceedings for purposes of the Sixth Amendment right to effective assistance of counsel, and I'm citing Padilla v. Kentucky, 559 U.S. 356;  also, Missouri v. Frye and Lafler v. Cooper.

In today's criminal justice system, therefore, the negotiation of a plea bargain, rather than unfolding in the trial, is almost always a critical point for a defendant;  and this is Frye at 566 U.S.—and I'm not sure what the exact cite is.   I believe it still might be—it's not finalized.   Because a plea bargaining process is a critical stage in a criminal proceeding, criminal defendants require effective assistance of counsel during plea negotiations, anything less might deny a defendant effective representation by counsel at the only stage when legal aid and advice would help him.

It is now clear after the United States Supreme Court's decision, Padilla, that the Sixth Amendment right to counsel applies to require counsel representing noncitizen criminal defendants to advise them concerning the immigration consequences of their pleas.   This is because recent changes in our immigration law have made removal merely an automatic result for a broad class of noncitizen offenders.   The importance of accurate legal advice for noncitizens accused of such crimes has never been more important.   These changes in federal immigration law confirm that our view—our view that, as a matter of federal law, deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes;  and I'm quoting Padilla at 1480.   Thus, in Padilla, the Supreme Court held that it is quintessentially the duty of counsel to provide her client with available advice about an issue like deportation and the failure to do so clearly satisfies the first prong of the Strickland analysis;  and that's Padilla at 1484.

In assessing trial counsel's performance in advising noncitizen defendants, the Supreme Court in Padilla annunciated a two-tier analytical framework, the application of which depends on whether the immigration consequences are true and clear under the law or whether the law is uncertain.   Where the law is not succinct or straightforward, counsel's duty is limited to doing no more than advising a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences;  however, where the law is truly clear, as it was in this case, the duty to give correct advice is equally clear.   Because this case involves ineffective assistance claim involving a guilty plea, it is governed by the standard of Strickland v. Washington, 466 U.S. 686, as modified by Hill —Hill v. Lockhart, 474 U.S. 52.

Under Strickland, to establish his claim of ineffective assistance, the petitioner has a burden to show that, one, counsel's representation fell below an objective standard of reasonableness, and, two, 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 Sixth Amendment.   With respect to the prejudice prong for claims of ineffective assistance, when the conviction resulted from the guilty plea, the petitioner must show 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.   I'm citing Johnson v. Commissioner of Correction, 285 Conn. 576, which is quoting Hill.

A reasonable probability is a standard of proof somewhat lower than a preponderance of the evidence.   And this is under United States v. Orocio, 645 F.3d 630.   Under Hill, The Court must decide whether counsel's continual ineffective performance affected the outcome of the plea process.   Although the Supreme Court in Padilla did not reach the prejudice prong of the Strickland, Hill, analysis, it made several statements that are relevant to a determination of prejudice including that to obtain relief on this type of claim, the petitioner must convince The Court that a decision to reject the plea bargain would have been rational under the circumstances.   The Court also stated that preserving the client's right to remain in the United States may be more important to the client than any potential jail sentence.   The appropriate inquiry is whether if the petitioner had been made aware of the mandatory deportation consequences of his plea, he would have reasonably chosen to go to trial even though he faced serious charges and significant exposure.   And I'm citing U.S. v. Orocio, 645 F.3d 645.

In this case, The Court finds that the petitioner has failed to prove that his attorney's conduct was deficient or that he was prejudiced.   The petitioner testified that his attorney never discussed immigration consequences of his plea with him and that the only time he discussed the plea was in the—on the day that he pleaded guilty.   The Court does not find the petitioner's testimony credible nor Mrs. Persaud's testimony credible.   A plea offer is developed over time, usually with an accept or reject date to give the defendant time to think it over.

Attorney Canace testified that he was fully aware of the requirements under Padilla which had been issued a few months prior to the sentencing date on March 30, 2010, and he knew that under Padilla he had to give a specific advice regarding deportation, in this case he stated that Mr. Persaud would be deported as a result of the plea because it involved an aggravated felony.   Mr. Persaud was also fully canvassed by The Court.   He was not under the influence of any medication, drugs or alcohol;  he's a well-educated man and clearly understands English very well;  and when advised by The Court of the possible consequences including deportation, he answered that he understood.   Mr. Canace testified consistently and credibly that, again, at the time of his representation he had spoken to the petitioner several times regarding the deportation consequences.   Therefore, The Court concludes that the petitioner has failed to prove that his attorney's conduct was deficient.

The petitioner—although The Court does not need to reach the second prong, the petitioner has also failed to prove prejudice.   The only evidence the petitioner introduced on this prong was the petitioner's testimony that had he known he would be deported, he would not have pleaded guilty.   The Court has already discredited the petitioner's claim that he didn't understand that he would be deported as a result of his plea.   In addition, even if The Court finds that—the statement credible, such as taken by itself, is insufficient to convince The Court that a decision to reject the plea would have been rational under the circumstances.   And this is particularly in light of the fact that the petitioner received a fully suspended sentence on the two counts to which he pleaded guilty;  and had he not done so, two additional charges would've been pending and as Mr. Canace testified, the state had very strong evidence and it would've been likely that he would have been convicted had he gone to trial and faced significant incarceration time and deportation as well.

For the foregoing reasons, the petition is denied.   Judgment shall enter for the respondent.

Hunchu Kwak, Superior Court Judge

Kwak, Hunchu, J.