Shane Brown v. The Warden, State Prison (2013)

DECISION

DECISION ON MOTION TO DISMISS

THE COURT:  All right.   Thank the parties for being patient and I apologize for being a few minutes late.   We usually try to be very prompt.

But in any event in the interim the court has taken the time to re-review the documents, to consult some additional case law and to, again, reflect on the parties' arguments, and after hearing and considering everything, the court is going to rule as follows with regards to the motion to dismiss.

As to count one, and again, all counts—all claims are effectively the same.   They're worded slightly differently, but they all come down to their sub-claims A, B, and C, that the court had some obligation, or failed to meet some obligation, to advise the petitioner of the certitude of deportation consequences based on his plea, and the court is going to grant the respondent's motion to dismiss that claim, that—for that count for failing to state a claim upon which relief can be granted, and at least for a case, in support of the—the court cites to State versus Irala, I-r-a-l-a, 68 Conn.App. 499 at page 518, where essentially this exact claim was made, which was that the court failed to advise the defendant of the likely certainty of the resulting deportation based on a plea, as opposed to simply advising them, that there may be a possibility of consequences.   That case coincidentally went to the Connecticut Supreme Court where cert was denied, certiorari was also denied by the United States Supreme Court at 537 U.S. 887.   That's a 2002 case.   And so, again, generally there's that case.

Also, the case law I think is pretty clear notwithstanding that a trial court, and again, this case deals with this exact issue and actually mentions at page 518, “The defendant's claim is without merit and fails because the court properly advised her as to the collateral consequences of deportation, and Section 54–1j, operates in a manner complimentary to federal law.”

It then cites the footnote 23, which says, “We need not indulge in an analysis of federal immigration law here because General Statutes 54–1j is a caveat in place only to call a defendant's attention to various potential immigration consequences under the federal law.   With that knowledge a given defendant can choose to proceed with the plea process or to pursue more information about the ramifications inherent in the plea before committing to those potential consequences.”

So, effectively, again, that—and again, the court's opinion that just happened to be a case I found.   I think there's plenty of other case law out there that indicates that the court has no duty above and beyond merely notifying the petitioner or a defendant of the possibilities or the ramifications of what are in 54–1j.

Here, the transcript that was submitted makes it clear that the court did just that.   Anything above and beyond that, the case law places the onus on the defendant to go out and seek additional information, but there is no duty upon the court to advise the defendant as to any possibility, probabilities or certainties of those consequences, but only to place him on notice.

So, count one is dismissed for failure to state a claim upon which relief can be granted.

And again, I know the petitioner tried to find and/or reframe this.   Again, under—again, and that's the state—this is a state law claim, but either under state law or federal law the results would be the same.

As to count two, the relevant claims are in paragraph 16–A and B. With regards to paragraph A, the court is going to deny the motion to dismiss.   Paragraph 16–A is effectively a claim that counsel failed to engage in competent and/or effective plea negotiations which is—a different claim than a Padilla claim and is a different issue.   The results are different.   The required proof of prejudice is different than the Padilla claim.   Here, there are general requirements that the petitioner makes some sort of showing that there could have or maybe would have been the probability of a better overall plea negotiation.   And so, I think, again, that does not fall within the Padilla Chardez context.   The petitioner there states a valid claim on its face and so the motion to dismiss 16–A is denied.

With regards to 16–B, the court is going to grant the motion to dismiss and the court's going to grant that motion to dismiss based on the Chardez versus United States decision and that is 133 Supreme Court 11–03, 2013, and it holds that the decisions in Padilla or the rule in Padilla requiring an affirmative notification by counsel of the likely guaranteed consequences of deportation are not retroactive to pleas which came—pleas which became final prior to Padilla.

In this case the petitioner does not frame his case under the Sixth Amendment, but tries to frame his claim or brings his claim under state law constitution and/or claims, and the court finds that either way the result is the same.   Connecticut has long followed federal precedence with regards to habeas law.   The court is not aware of nor has the court been pointed to any case law here in the state of Connecticut, which leads this court to believe that there is any expansion of that rule here or intended to be an expansion of that rule here in Connecticut, and so at least in this court's opinion and in decisions this court as considered right now, Chardez and Padilla are the law in Connecticut as to the breath of a petitioner's rights as to claims regarding counsel's failure to advise on immigration consequences.

And so, therefore, this court finds that under either a federal claim or a state constitutional or legal claim, that there is no right or no retroactivity, and since this—this petitioner's plea was final in 2002, which was long before the decision in Padilla came out in, I believe October of 2010, if I'm correct, then this court finds that there is not a claim upon which relief can be granted as to count—as to the count in claim 16–B, and so that claim is also dismissed.

Newson, J.

DECISION ON TRIAL

THE COURT:  All right.   We're back on the record in the Brown matter, and the record should reflect that all parties, including the petitioner, have returned to the courtroom.

During the recess the court had the opportunity to review the exhibits.   I consulted my notes and also, obviously, relevant case law, again, as to the only remaining claim here, which is count two of the petition—hold on one second—and that's paragraph 16–B—I mean 16–A, that petitioner's counsel was ineffective because he didn't make the petitioner's immigration status and the substantial certainty of his deportation part of the plea bargaining process with the state and the trial court, and the court's prepared to rule.

And in general and I'll get specific, the court finds that the petitioner has failed to meet his burden, has failed to prove the requirements of—this would be a Strickland versus Washington case as modified by Hill versus Lockhart, and effectively the petitioner would need to prove—and again, I didn't see if it's a Hill versus Lockhart claim, but maybe more akin to a Frye or Cooper claim, but it's kind of in the middle there where his claim is that counsel failed to properly negotiate with the state's attorney and/or the court, and that if he had done his job, the prejudice claim here is that there would have been a different or better result or in other words a more favorable plea agreement.

First, as to counsel's conduct, I find that counsel's testimony here was credible for what he did remember on an eleven-year-old case, and counsel testified that he vigorously argued on his client's behalf, a client who mind you was facing some serious charges:  a B and a C felony.   The A—the B felony being armed robbery and the allegation that he pointed a weapon at somebody, while with some others, and while attempting to rob that—or while robbing that person.

And although the petitioner here focuses on the microcosmic issue, and not to make light of his position of—or the sole issue of what counsel did with respect to this issue of immigration, the court's job and the court is required to review counsel's representation and his work for the client on the whole I think.   And so, counsel's only consideration in this case was not just the fact that the petitioner may face deportation as a result, he first had the fact that his client came in charged with a crime that could give him a five-year minimum mandatory prison sentence as well as an additional twenty-five years in prison.

Also, which was noteworthy, and sometimes you've got to beat the court over the head is, you know he deals with the fact that it wasn't necessarily addressed directly in court, but when I read through the—the plea canvass and paperwork, you realize that this was a petitioner who was already on juvenile parole.   And so what that says to the court, and the reasonable inference from that is that although he had never had prior—a prior adult record, this was an individual who had either been through the system enough times, or had committed a serious enough crime where he had reached the ultimate disposition in juvenile, where he had been committed to the Long Lane School.

And again, maybe that had sort of been touched about and maybe I just didn't pick it up, but so that potentially goes, and I addressed that issue because this goes to the issue of well this is a young man who really hasn't been in any serious trouble before and why would the state want to hold him accountable?   Why would the state want to see that he'd get deported?   And I think that goes—and I'll address that in more detail.

So, this attorney here was not just dealing with a young man of a young age with no prior background or history with the courts, who comes in with relatively minor charges, and where his only real focus—or he's focusing on where the most significant or most harmful part of the disposition could have been him being deported.   He's dealing with minimum mandatory sentences, a client who's—for lack of a better word sort of has been through—even though it was a juvenile system, been through the system and significant overall exposure.

Counsel testified that, notwithstanding, including trying to reduce his client's overall exposure, he attempted to negotiate in and around the robbery charges and other charges, so that his client would not face charges that would result in his deportation.   He testified that it was his—he had dealt with this issue before.   That it was somewhat of a regular practice of his to sort of be familiar with the issues and to address the issues.   And there's no evidence to really refute that he did that in this case.   The real question or claim is not that he didn't do it, but that he should have done it in a different way, and that's not really what habeas is about.

Habeas is about—or claim of ineffectiveness is not about proving that a lawyer didn't do it the right way or a lawyer could have done it better.   It's about whether or not what the lawyer did was so bad or so off base that it's unreasonable, when looked at and compared to a competent lawyer, a competent criminal defense lawyer trained under similar circumstances.

I look at counsel's testimony about what he did here and I look at the factors he was dealing with;  the victim identified Mr. Brown.   Mr. Brown, again, had already apparently had some significant issues or enough issues that he had been committed to the Long Lane School, and was on parole, and committed this crime while on parole.   And so when looked at as a whole, it appears that counsel worked vigorously and achieved a substantial result for his client that resulted him serving a little over a year in prison on a case that started out with the possibility of a five-year minimum mandatory prison sentence.

I think counsel did a valiant job.   I think counsel did a competent and reasonable job and just because there could have been other possible ways he could have gone about this, does not make the way he attempted to attack the issue of the deportation unreasonable.   He was clearly aware of the issue.   He clearly made efforts to try to work around the issue.   He made an effort to try to get his client a misdemeanor plea.   He made an effort to get his client a youthful offender disposition.   So, in all it appears that counsel worked vigorously to protect his client, not only from the issue of deportation, but to minimize all impacts of the potential of a guilty plea, if he had gotten him the youthful offender disposition, then the most significant sentence he could have served, probation or otherwise, would have been four years.

And so, again, I find generally that counsel's worked vigorously and performed well within the bounds required by Strickland, Hill versus Lockhart, and the rest of the cases that may play here, when we're talking about reasonableness and effective assistance of counsel.

As to the second prong, which would be the prejudice prong, I find the petitioner has also failed to establish prejudice.   And the prejudice finding here, one, at a minimum would require the petitioner to show, again, that there's some reasonable probability that some other disposition that would have avoided these deportation consequences could have or would have been placed on the table, and there, frankly, is no evidence at all to support that.

There is no evidence—and frankly, actually, the only evidence about that is from petitioner's former counsel, Attorney Maddox, who testified that after negotiating or attempting to negotiate all the other less onerous dispositions, he was told robbery second, eight years as a top number with something suspended is the best it's going to get.   And there is nothing that this court has heard that reasonably leads to the conclusion that other dispositions or other fanciful dispositions such as stacking a bunch of misdemeanors and pleading to the robbery in the second degree for a fine.   Yes, in the strict realm of possibilities, all of those things are possible.   Whether or not under the circumstances of this case, and reading through the transcript and knowing that the petitioner comes in on parole in this matter, the court finds that—doesn't find if there's any really probability or that hasn't been proven that there's any real probability that the state's attorney would have been willing to modify or sort of craft a disposition that was significantly helpful to the petitioner, nor that the court would have been willing to do so.   And, in fact, there's no real proof that one way or the other, whether or not he was going to be deported or not going to be deported played any factor whatsoever in the decisions that the state was making.

And frankly, when the court reads the plea transcript and sees that he was, in fact, on parole, it brings more clarity to the state's attorney's statement of, no, there needs to be some accountability, and frankly, makes it less reasonable to presume that having an individual, who's been through the juvenile system is on parole, is out on release, and then commits an armed robbery, that a state's attorney is going to be willing to sort of bend over off, so to speak, to make life easier on the defendant so that he doesn't have to deal with the full panoply of the possible consequences of his guilty plea.   And that's, frankly, after reducing the charge from robbery in the first degree to a robbery in the second degree.

But again, it's the petitioner's burden to prove that by some evidence that there's a reasonable probability that there would have been some other or more favorable plea agreement that the state's attorney would have been willing to offer, accept or present, or that the trial court would have been willing to accept.   Again, as to the state's attorney, the court can only deal with the evidence that's presented before and there is none of that.

As a judge of the Superior Court, I am presumed to be able to determine and to decide what a reasonable Superior Court judge would have done under sentencing circumstances and other cases like this, and frankly, in this court's opinion, it is not reasonable under the circumstances to find that there would be any reasonable probability that a trial court being presented with a petitioner under his circumstances, who's out on parole, commits an armed robbery while he's out on parole, and already gets a significantly reduced plea to a charge, and is able to essentially walk away from prison without doing any more time than he would have done on his parole revocation, I find it—I don't find any probability to believe that a sentencing judge of a trial court would have been willing to go any further in “assisting” Mr. Brown to make sure that he didn't suffer whatever other consequences may come based on his very lenient plea deal.

And so for all those reasons the court is going to deny the petition.   Again, counts one and counts 2–B, having already been dismissed by the court in ruling on the respondent's motion to dismiss.

I will order a copy of a transcript of my comments from both the argument and ruling on the motion to dismiss, and from this portion of the proceedings, which will both stand as—in lieu of memorandums of decision in this matter, I will sign both.   The clerk will—the record will reflect the clerk is presenting through counsel a copy of the petitioner's notice of rights to appeal and the marshal is now delivering those documents.

And that being said, we will stand adjourned until 10 a.m. tomorrow morning in this courtroom.

Thank you.

Newson, J.

Newson, John M., J.