330445 v. Warden (2013)

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Cobb, Susan Quinn, J. Opinion TitleMEMORANDUM OF DECISION The petitioner, Chandra Bozelko, brings this petition for a writ of habeas corpus claiming that her trial attorney provided her ineffective legal representation during her plea process in violation of the state and federal constitutions.   The petitioner seeks to have the judgment vacated and the underlying criminal case remanded for further proceedings, or such other relief as law and justice require.   Based upon the credible evidence presented, the court finds the issues for the respondent and denies the petition.   In the underlying criminal case, the state claimed that the petitioner contacted jurors sitting on her criminal trial in the Ansonia–Milford judicial district, and instructed them to find the petitioner not guilty of the crimes charged.1  The petitioner was charged with six counts of attempt to commit tampering with a juror in violation of General Statutes §§ 53a–49(a)(2) and 53a–154, one count of false statement in the second degree in violation of General Statutes § 53a–157b and one count of tampering with physical evidence in violation of General Statutes § 53a–155(1).   The petitioner was also charged with claims arising from the same allegations in a separate case in the Stamford judicial district.   The petitioner's exposure on these charges was approximately fifty years.   Attorney Dean Popkin represented the petitioner.   The petitioner entered a guilty plea, under the Alford doctrine,2 to three counts of attempt to commit tampering with a juror on March 30, 2010.   On May 24, 2010, the petitioner was sentenced to twenty-seven months incarceration on each count, to run concurrently, for a total effective sentence of twenty-seven months imprisonment.   The state nolled the remaining charges against the petitioner in both this case and the Stamford case.   The petitioner filed this petition for habeas corpus on August 16, 2010.   In her second amended petition, filed on March 21, 2013, the petitioner claims that her trial attorney was ineffective in failing to conduct an adequate pretrial investigation prior to the petitioner's entry of her plea, including an investigation of phone records from the petitioner's residence that would indicate that the petitioner was on the telephone at the time the phone calls were made to the jurors.   A trial was held in this case on March 21, 2013, at which the parties presented evidence.   The petitioner called four witnesses;  herself, Attorney Popkin, Roberta Murtagh, a representative of Help, Inc., and Patrick Gaffney, a representative of AT & T. The petitioner submitted exhibits, including transcripts from the plea canvass and sentencing.   Neither party filed post-trial briefs.   Based on the evidence adduced at trial, the court finds the following facts:  On the evening of October 4, 2007, while the petitioner's criminal jury trial was underway, several jurors assigned to the case received telephone calls at their residences from a phone number identified on their respective caller identification systems as originating from Kate's Paperie, a business establishment in Greenwich, Connecticut.   A male caller asked the jurors questions regarding their status as jurors and instructed the jurors that they should not find the petitioner guilty of the pending charges.   The petitioner submitted an affidavit to the court indicating that she received several calls from jurors at her residence on October 8, 2007.   The police conducted an extensive investigation and determined that the calls did not originate from Kate's Paperie or from the jurors' residences.   The police determined that the caller identification information for these calls had been “spoofed,” a process whereby the caller attaches false identity contact information to the communication.   The police discovered that a “Spoof Card” was purchased on April 12, 2007, with the computer located in the petitioner's residence and her mother's credit card.   A “Spoof Card” allows the user to change caller identification information through the use of a computer service.   A “Spoof Card” user also has the ability to change his or her voice to that of a male or female.   The call records showed that 123 calls were made with the card beginning on April 12, 2007, and ending on October 4, 2007.   Ninety-four of the calls originated from the petitioner's father's fax machine phone number, nineteen of the calls originated from the petitioner's residence phone number and ten of the calls originated from a Tracfone phone number.   The Tracfone, a prepaid cell phone, was activated from the computer in the petitioner's residence.   The “Spoof Card” and the Tracfone were used to place the phone calls to the jurors on October 4, 2007.   The calls took place over the span of an hour and a half, beginning at 7:22 p.m. and ending at 8:52 p.m. All of the phone calls made using the “Spoof Card” were recorded.   A second “Spoof Card” was purchased on October 8, 2007, with the computer located in the petitioner's residence and a prepaid credit card that was found in the petitioner's bedroom when the search warrant was executed.   The second “Spoof Card” and the Tracfone were used to make calls to the petitioner's residence from phone numbers “spoofed” to appear as if the calls originated from the jurors' residences.   There were no recordings made of these calls.   DISCUSSION 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.   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.   Baez v. Commissioner of Correction, 34 Conn.App. 236, 242–43, 641 A.2d 147, cert. denied, 231 Conn. 905, 906, 648 A.2d 149 (1994).”   Dennis v. Commissioner of Correction, 134 Conn.App. 520, 531, 39 A.3d 799 (2012).   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, 132 S.Ct. 1399;  182 L.Ed.2d 379 (2012);  Lafler v. Cooper, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012);  Padilla v. Kentucky, 559 U.S. 356, 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, 132 S.Ct. 1407.   Similarly, “[o]ur Supreme Court has recognized that pretrial negotiations implicating 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 (2010), rev'd on other grounds, 307 Conn. 342, 53 A.3d 983 (2012).   The decision to plead guilty is “ordinarily the most important single decision in any criminal case.”  (Internal quotation marks omitted.)   Id., 572.   Because the plea bargaining process is a critical stage in a criminal proceeding, “criminal defendants require effective assistance of counsel during plea negotiations.”   Missouri v. Frye, supra, 132 S.Ct. 1407–08;  see Lafler v. Cooper, supra, 132 S.Ct. 1385.  “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, 132 S.Ct. 1408.  “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, [supra, 400 U.S. 31];  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).   Because this case involves an ineffective assistance claim involving a guilty plea, it is governed by the standard of Strickland v. Washington, supra, 466 U.S. 686, as modified by Hill v. Lockhart, supra, 474 U.S. 56.   Under Strickland, to establish her 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 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.”  (Internal quotation marks omitted.)   Johnson v. Commissioner of Correction, supra, 285 Conn. 576, quoting Hill v. Lockhart, supra, 474 U.S. 59.  “A ‘reasonable probability’ is a standard of proof ‘somewhat lower’ than a preponderance of the evidence.”   United States v. Orocio, 645 F.3d 630, 643 (3rd Cir.2011), citing Strickland v. Washington, supra, 466 U.S. 694.   Under Hill v. Lockhart, supra, 474 U.S. 59, the court must decide “whether counsel's constitutionally ineffective performance affected the outcome of the plea process.”   Id. The petitioner claims that Attorney Popkin was ineffective because he failed to adequately investigate a theory of defense that the petitioner could not have made the phone calls to the jurors because, at the time the calls were made, the petitioner was making and receiving calls from Kinsella Commons, a mental health and substance abuse treatment center in Waterbury, Connecticut, regarding Ernest Tarantino, Jr., a patient for whom the petitioner was appointed to act as representative payee by the Social Security Administration.   The court finds that the petitioner has failed to prove deficient performance or prejudice for purposes of her ineffective assistance claim.  “The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it.'  ․ Tatum v. Commissioner of Correction, 66 Conn.App. 61, 66, 783 A.2d 1151, cert. denied, 258 Conn. 937, 785 A.2d 232 (2001);  see also Nieves v. Commissioner of Correction, 51 Conn.App. 615, 624, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999).  ‘The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner.’   Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 (2001).”   Norton v. Commissioner of Correction, 132 Conn.App. 850, 858–59, 33 A.3d 819, cert. denied, 303 Conn. 936, 36 A 3d 695 (2012).   At trial, the petitioner introduced records from AT & T and Kinsella Commons to demonstrate what additional investigation by Attorney Popkin would have revealed.   The AT & T phone records submitted into evidence indicate that several calls were made from the landline at the petitioner's residence on the evening of October 4, 2007.   The first outgoing phone call was made at 7:24 p.m., and the last outgoing phone call was made at 10:01 p.m. The durations of the phone calls ranged from approximately one second to four and a half minutes.   The petitioner testified that the outgoing calls were made to Kinsella Commons, Tarantino, relatives of Tarantino, and the petitioner's sisters.   The notes submitted from Kinsella Commons, handwritten by Willie Green, a supervisor of the center's residents, state that Green received a phone call from the petitioner on the evening of October 4, 2007.   Green's notes indicate that the call was received at 7:45 p.m., but they do not indicate how long the phone call lasted.   The AT & T phone records indicate that one phone call was made from the petitioner's residence to Kinsella Commons at 7:48 p.m., and the call ended at 7:52 p.m. Attorney Popkin hired an investigator in this case.   The investigator attempted to contact individuals identified by the petitioner as having some involvement with the case, but they refused to speak with him.   The investigator also arranged for a forensic review of the petitioner's hard drive, but the forensic examiner found more evidence on the computer that was detrimental to the petitioner than the state police had found.   The court credits Attorney Popkin's testimony that he also requested the phone records to substantiate the petitioner's claimed theory of defense, but he did not find them to be helpful.   The phone records did not prove that it was the petitioner making the phone calls.   Moreover, Attorney Popkin determined that several brief phone calls to Kinsella Commons would not account for the hour and a half time frame during which the calls were made to the jurors.   Attorney Popkin wrote a letter to the petitioner, recommending that she plead guilty due to the strength of the state's case against her and her lack of a viable defense.   While the voice on the tape recordings of the phone calls made to the jurors using the “Spoof Card” was disguised in a male voice, the voice on other phone calls recorded on the card was not disguised.   Attorney Popkin determined that the petitioner's defense would require her to testify, and he believed that any jury that heard the tape recordings and the petitioner's voice would determine that it was her voice on those phone calls.   Attorney Popkin testified that he reviewed the tapes with the petitioner, and that she decided to plead guilty after hearing the recordings.   He believed that the plea deal was very favorable in light of the exposure she faced.   The sentencing court, Rodriguez, J. thoroughly canvassed the petitioner regarding her plea.   Pursuant to the foregoing, the court finds that the evidence submitted by the petitioner is insufficient to establish the existence of exculpatory information that should have been discovered had a proper investigation been conducted.   Attorney Popkin's investigation was objectively reasonable under the circumstances of this case, and the petitioner has not met her burden of proving deficient performance for purposes of her ineffective assistance claim.   Furthermore, the petitioner has also failed to prove prejudice as to her claim.   To establish prejudice in a failure to investigate claim involving a guilty plea, the petitioner must show that the investigation would have likely discovered exculpatory evidence that “would have led counsel to change his recommendation as to the plea.   This assessment, in turn, will depend on large part on the prediction whether the evidence likely would have changed the outcome of a trial.”   Hill v. Lockhart, supra, 474 U.S. 59.   The evidence submitted by the petitioner is insufficient to establish the existence of exculpatory information that would have changed the result in this case.   The phone records reveal that calls were made on the landline in the petitioner's residence;  however, the phone calls made to the jurors were placed on a Tracfone.   The duration of the outgoing phone calls do not amount to the time needed to attempt to tamper with the jurors.   Furthermore, there is no evidence that it was the petitioner who was making the phone calls.   The only evidence of a phone call made by the petitioner on October 4, 2007, is a four-minute phone call made to Green around 7:45 p.m. The petitioner pleaded guilty as a result of the strength of the state's case, particularly the existence of the tape recordings featuring the petitioner's voice that the state intended to introduce into evidence, and the potential exposure that she faced if convicted.   The court does not credit the petitioner's testimony that she would have gone to trial in light of these circumstances.   The court finds that there is not a reasonable probability that this newly submitted evidence would have changed the petitioner's decision to plead guilty.   Accordingly, the petitioner has failed to prove prejudice as to her ineffective assistance claim.   CONCLUSION For all of the foregoing reasons, the petition is denied.   Judgment shall enter for the respondent.   Cobb, J. FN1. In that criminal trial, the petitioner was charged in four separate files with one count of attempt to commit larceny in the first degree in violation of General Statutes §§ 53a–122 and 53a–49, one count of identity theft in the first degree in violation of General Statutes § 53a–129b, four counts of attempt to commit illegal use of a credit card in violation of General Statutes §§ 53a–128d and 53a–49, one count of forgery in the third degree in violation of General Statutes § 53a–140, one count of larceny in the third degree in violation of General Statutes § 53a–124, three counts of illegal use of a credit card in violation of § 53a–128d, one count of forgery in the third degree in violation of § 53a–140, one count of attempt to commit larceny in the fifth degree in violation of General Statutes §§ 53a–125a and 53a–49, five counts of identity theft in the third degree in violation of § 53a–129d, one count of larceny in the fifth degree in violation of § 53a–125a, one count of attempt to commit larceny in the fourth degree in violation of General Statutes §§ 53a–125 and 53a–49, one count of larceny in the sixth degree in violation of General Statutes § 53a–125b and one count of attempt to commit larceny in the fourth degree in violation of General Statutes §§ 53a–125 and 53a–49. FN2. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).