223120 v. Warden (2013)

MEMORANDUM OF DECISION

The petitioner, Alejandro Pinero, brings this petition for a writ of habeas corpus claiming that his trial attorney provided him ineffective legal representation during his plea process in violation of the state and federal constitutions and seeking to have his conviction vacated.   Based upon the credible evidence presented, the court finds the issues for the respondent and denies the petition.

The petitioner was charged in New Britain judicial district with possession with intent to sell in violation of General Statutes § 21a–279(a), possession of narcotics with intent to sell in violation of General Statutes § 21a–278(b), sale of illegal drugs in violation of General Statutes § 21a–278(b) and failure to appear in the first degree in violation of General Statutes § 53a–172 (the drug case).   At that time, the petitioner had two other pending criminal matters.   In the Windham judicial district, the petitioner was charged with conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a–134 and 53a–48, robbery in the first degree in violation of General Statutes § 53a–134, burglary in the first degree in violation of General Statutes § 53a–101, assault in the second degree in violation of General Statutes § 53a–60, risk of injury in violation of General Statutes § 53a–21(a)(1) and failure to appear in the first degree in violation of General Statutes § 53a–172 (the robbery case).   Attorney Raul Davila represented the petitioner in both of these matters.   In the Middletown judicial district, the petitioner was charged with forgery in the first degree in violation of General Statutes § 53a–138 (the forgery case).

On February 5, 2010, the petitioner entered a guilty plea, under the Alford doctrine,¹ in the forgery case to one count of forgery in the first degree in violation of General Statutes § 53a–138.   On May 4, 2010, the court, Vitale, J., sentenced the petitioner in this matter to seven years of incarceration, suspended after two years, followed by three years probation.   On June 1, 2010, the petitioner entered a guilty plea, under the Alford doctrine, in the robbery case to one count of robbery in the second degree in violation of General Statutes § 53a–13 and one count of failure to appear in the first degree in violation of General Statutes § 53a–172.   The matter was continued for sentencing with an agreement by both parties that the petitioner would receive a sentence of three years of incarceration, followed by five years special parole.

On June 21, 2010, the state made a plea offer in the drug case that carried a sentence of seven years incarceration, suspended after the service of three years, followed by three years probation (7/3/3 offer), to run concurrently to his other sentences.   The petitioner did not accept this plea offer.   That same day, the petitioner entered a guilty plea, under the Alford doctrine, in the drug case to one count of possession with intent to sell in violation of General Statutes § 21a–277(a).   The plea entered by the petitioner was an open plea with no sentencing agreement, thereby leaving the sentencing to the judge's discretion.   The parties agreed to transfer the drug case from the New Britain judicial district to the Windham judicial district for simultaneous disposition with the petitioner's robbery case.   On September 21, 2010, the court, dos Santos, J., sentenced the petitioner in the drug and robbery cases.   In the robbery case, the court sentenced the petitioner to an effective sentence of three years of incarceration, followed by five years of special parole.   In the drug case, the court sentenced the petitioner to fifty-four months of incarceration to serve concurrent to his other sentences.   Judge dos Santos acknowledged that the sentence was intended to “afford [the petitioner] credit for the time that he has been held in lieu of [bond].”   Petitioner's Exhibit 6 (Transcript, September 21, 2010), page 6.

The petitioner filed this petition for habeas corpus on April 6, 2011.   In his amended petition, filed on December 18, 2012, the petitioner claims that his trial attorney was ineffective in failing to advise the petitioner to take the state attorney's original plea offer in the drug case, which would have resulted in a lesser total effective sentence.²

A trial was held in this case on May 9, 2013, at which the parties presented evidence.   The petitioner called three witnesses:  himself, Attorney Davila and assistant state's attorney, Brett Salafia.   Both parties submitted exhibits, including transcripts from the plea canvass and sentencing.   The petitioner filed a pre-trial brief, which is the only brief filed with the court.

DISCUSSION

I. Standard for ineffective assistance of counsel

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 ․ As enunciated in Strickland v. Washington, [supra, 466 U.S. 687], [our Supreme Court] has stated:  It is axiomatic that the right to counsel is the right to the effective assistance of counsel ․ A claim of ineffective assistance of counsel consists of two components:  a performance prong and a prejudice prong.   To satisfy the performance prong ․ the petitioner must demonstrate that his attorney's representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law ․ To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”  (Internal quotation marks omitted.)  Fernandez v. Commissioner of Correction, 291 Conn. 830, 834–35, 970 A.2d 721 (2009).

The United States Supreme Court has recently held that pretrial negotiations implicating the decision as to whether to plead guilty is a critical stage in criminal proceedings for purposes of the sixth amendment right to effective assistance of counsel.  Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010);  Missouri v. Frye, 566 U.S. 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012);  Lafler v. Cooper, 566 U.S. 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012).  “In today's criminal justice system ․ the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always a critical point for a defendant.”  Missouri v. Frye, supra, 132 S.Ct. 1407.   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.”  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 [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.”  (Internal quotation marks omitted.)  Peterson v. Commissioner of Correction, 142 Conn.App. 267, 273 (2013).  “On the one hand, defense counsel must give the client the benefit of counsel's professional advice on this crucial decision of whether to plead guilty ․ As part of this advice, counsel must communicate to the defendant the terms of the plea offer ․ and should usually inform the defendant of the strengths and weaknesses of the case against him, as well as the alternative sentences to which he will most likely be exposed ․ On the other hand, the ultimate decision whether to plead guilty must be made by the defendant ․ And a lawyer must take care not to coerce a client into either accepting or rejecting a plea offer ․ Counsel's conclusion as to how best to advise a client in order to avoid, on the one hand, failing to give advice and, on the other, coercing a plea enjoys a wide range of reasonableness because [r]epresentation is an art ․ and [t]here are countless ways to provide effective assistance in any given case ․ Counsel rendering advice in this critical area may take into account, among other factors, the defendant's chances of prevailing at trial, the likely disparity in sentencing after a full trial as compared to a guilty plea (whether or not accompanied by an agreement with the government), whether defendant has maintained his innocence, and the defendant's comprehension of the various factors that will inform his plea decision.”  (Internal quotation marks omitted.)  Vasquez v. Commissioner of Correction, 123 Conn.App. 424, 438, 1 A.3d 1242 (2010), cert. denied, 302 Conn. 901, 23 A.3d 1241 (2011).

“To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel.   Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law.   To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.   Cf. Glover v. United States, 531 U.S. 198, 203 (2001) ( ‘[A]ny amount of [additional] jail time has [s]ixth [a]mendment significance’).”  Missouri v. Frye, supra, 132 S.Ct. 1409;  see also Ebron v. Commissioner of Correction, supra, 307 Conn. 357 (to show prejudice in lapsed plea case, petitioner must establish:  “(1) it is reasonably probable that, if not for counsel's deficient performance, the petitioner would have accepted the plea offer, and (2) the trial judge would have conditionally accepted the plea agreement if it had been presented to the court”).

II. Count one—ineffective assistance of counsel

The petitioner alleges in the following paragraphs in count one that Attorney Davila performed deficiently in the following ways:  16a.)—his discussions with the petitioner resulted in the petitioner pleading guilty in the drug case because his understanding that the robbery case would be the controlling case was incorrect;  16b.)—failed to advise the petitioner in such a way that he would have accepted the 7/3/3 offer made in New Britain on June 21, 2010;  16c.)—failed to advise the petitioner in such a way that he understood that the open plea he entered in the drug case made it possible for him to receive a total effective sentence that was longer than 7/3/3 offer;  16d.)— ․ failed to let the petitioner know that the prosecutor in Danielson was not in agreement with the 7/3/3 offer from New Britain;  16e.)—erroneously advised the petitioner that it would be to his benefit because of jail credit and “dead time” issues to have the New Britain matter transferred to Danielson for simultaneous disposition with the robbery case;  16f.)—failed to advise the petitioner that it was not possible for him, with the open plea in the drug case, to receive a more favorable total effective sentence had the petitioner accepted the 7/3/3 offer in the drug case;  16g.)—failed to make it clear to the petitioner that the 7/3/3 offer made June 21, 2010 in the drug case had to be accepted that day or the petitioner would risk receiving a longer sentence;  and 16h.)—failed to advise the petitioner that transferring the drug case to Danielson subjected him to a significant risk of receiving a total effective sentence longer than the 7/3/3 offer.

The petitioner was fully canvassed in New Britain by Judge Strackbein when he pleaded guilty under the Alford doctrine.   The petitioner understood that it was an open plea and that there was no agreement as to the sentence he would receive in Danielson.   The court does not find credible the petitioner's testimony that he would have pleaded guilty in New Britain to the offer of seven years to serve, execution suspended after the service of three years, followed by three years of probation, because had he done so he would have “dead time” on the remaining file in Danielson, where he could have received a consecutive sentence and which would have resulted in a longer incarceration time.   The petitioner has an extensive criminal history and understood the difference between a consecutive sentence and a concurrent sentence and testified that a concurrent sentence was better than a consecutive sentence Even though, he received a greater sentence than the three years incarceration time on the possession with intent to sell charge, the total amount of incarceration time was less than what he would have received with a consecutive sentence imposed in Danielson.

Attorney Raul Davila is an experienced attorney who had approximately 15–16 years of criminal experience and had handled in excess of one thousand cases by the time he represented the petitioner.   His goal was a global disposition so that the petitioner would not have any “dead time” ³ on any remaining files.   The original offer from state's attorney Crockett was five years incarceration followed by five years special parole, which Attorney Davila was able to reduce to three years incarceration followed by five years special parole.   Attorney Davila explained all offers to the petitioner, including the offer from Danielson, which the prosecutor initially intended to run consecutive to the sentence imposed in Middletown.

Attorney Davila testified that he explained the global disposition to the petitioner and he would have explained it further had the petitioner conveyed that he did not fully comprehend the sentences.   The court finds that Attorney Davila's representation, rather than ineffective, was more than adequate.   The petitioner faced charges in three separate jurisdictions and, moreover, faced a number of very serious felony charges, some of which carried mandatory minimum sentences.   Due to Attorney Davila's representation and negotiations in multiple courts, the petitioner was able to avoid all of the charges that carried mandatory minimum sentences.

The court finds credible the testimony of Matthew Crockett, assistant state's attorney for the Windham judicial district, who prosecuted the petitioner for the charges of robbery in the second degree and failure to appear in the first degree.   State's attorney Crockett testified that due to the seriousness of the offenses for which the petitioner was charged, and for which the petitioner's maximum exposure was over sixty years, it was his intention to seek a consecutive sentence to his pending charges in other jurisdictions.   When the petitioner pleaded guilty under the Alford doctrine in Danielson, it was the understanding of the parties that it would be a consecutive sentence to the sentence in Middletown.   However, during the plea, the intent to have the sentence run consecutive was not placed on the record.⁴

State's attorney Crockett also testified that he accepted Judge dos Santos's sentence of 54 months to serve for possession with intent to sell in violation of General Statutes § 21a–277(a), which was transferred from New Britain for disposition in Danielson, because the petitioner received a greater sentence than what was offered in New Britain, namely seven years to serve, execution suspended after the service of three years, followed by three years of probation.   If the petitioner received the 7/3/3 sentence that was offered in New Britain, Attorney Crockett would have pursued his consecutive sentence, which would have resulted in the petitioner being incarcerated for six years, rather than the 54–month sentence that he received.   Therefore, even assuming that his trial counsel was deficient, which he was not, the petitioner was not prejudiced because even though he received a greater sentence than the offer that he rejected in New Britain, the total incarceration time was less.

Although the petitioner alleges numerous failures by Attorney Davila to properly advise him, the credible evidence presented instead shows that counsel very effectively represented the petitioner and resolved his cases via a global resolution that inured to the petitioner's benefit.   The petitioner's eventual total effective sentence for both the robbery and the drug cases was approximately ten percent of his original exposure for the Danielson charges alone.   The total effective sentence for both cases runs concurrent to the Middletown sentence, not consecutive as contemplated by the prosecutor.   Lastly, the sentencing court specifically structured the sentence so that the petitioner would, in an indirect way through a lower sentence, receive “jail credit” for time he was a sentenced prisoner with other matters in presentence status.   The petitioner here has failed to prove both deficient performance and any resultant prejudice.

CONCLUSION

For all of the foregoing reasons, the petition is denied.   Judgment shall enter for the respondent.   Counsel for the petitioner shall file a judgment file with the clerk within thirty days of the date of this decision.

It is so ordered.

Kwak, J.

FOOTNOTES

FN1. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)..  FN1. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

FN2. The amended petition included one other claim alleging that the petitioner's convictions and incarceration violate his due process rights because his plea in the drug case was not knowing, intelligent and voluntary.   The petitioner subsequently withdrew this claim..  FN2. The amended petition included one other claim alleging that the petitioner's convictions and incarceration violate his due process rights because his plea in the drug case was not knowing, intelligent and voluntary.   The petitioner subsequently withdrew this claim.

FN3. “Dead time” is prison parlance for presentence confinement credits that cannot be credited to a sentence because a defendant is already a sentenced inmate in one or more other matters while simultaneously having pending charges.   See, e.g., State v. Hamilton, 228 Conn. 234, 255, 636 A.2d 760 (1994) (Norcott, J., concurring), Griffin v. Commissioner of Correction, 123 Conn.App. 840, 843 n.3, 3 A 3d 189, cert. denied, 229 Conn. 906, 10 A.3d 522 (2010)..  FN3. “Dead time” is prison parlance for presentence confinement credits that cannot be credited to a sentence because a defendant is already a sentenced inmate in one or more other matters while simultaneously having pending charges.   See, e.g., State v. Hamilton, 228 Conn. 234, 255, 636 A.2d 760 (1994) (Norcott, J., concurring), Griffin v. Commissioner of Correction, 123 Conn.App. 840, 843 n.3, 3 A 3d 189, cert. denied, 229 Conn. 906, 10 A.3d 522 (2010).

FN4. The court notes that “[i]t is the law of this state that in the absence of an indication to the contrary, two separate sentences are presumed to be concurrent rather than consecutive.   See State v. Pina, 185 Conn. 473, 478–79, 440 A.2d 962 (1981);  Redway v. Walker, 132 Conn. 300, 303, 43 A.2d 748 (1945).”  Whitaker v. Commissioner of Correction, 90 Conn.App. 460, 467 n.15, 878 A.2d 321, cert. denied, 276 Conn. 918, 888 A.2d 89 (2005).   Although the court finds credible that the prosecutor in Danielson would have sought a consecutive sentence, the “firm agreement for a sentence of three years to serve with five years special parole” makes no mention of the sentence running consecutively.   Petitioner's Exhibit 4 (Transcript, June 1, 2010), page 3..  FN4. The court notes that “[i]t is the law of this state that in the absence of an indication to the contrary, two separate sentences are presumed to be concurrent rather than consecutive.   See State v. Pina, 185 Conn. 473, 478–79, 440 A.2d 962 (1981);  Redway v. Walker, 132 Conn. 300, 303, 43 A.2d 748 (1945).”  Whitaker v. Commissioner of Correction, 90 Conn.App. 460, 467 n.15, 878 A.2d 321, cert. denied, 276 Conn. 918, 888 A.2d 89 (2005).   Although the court finds credible that the prosecutor in Danielson would have sought a consecutive sentence, the “firm agreement for a sentence of three years to serve with five years special parole” makes no mention of the sentence running consecutively.   Petitioner's Exhibit 4 (Transcript, June 1, 2010), page 3.

Kwak, Hunchu, J.