Luis Flores v. Warden, State Prison (2013)

MEMORANDUM OF DECISION

The petitioner, Luis Flores, seeks habeas corpus relief from sixteen years imprisonment resulting from his convictions, after a jury trial, for the crimes of robbery first degree, conspiracy to commit robbery, burglary second degree, and two counts of larceny third degree.   Guilty verdicts on other counts were either merged postverdict or reversed on appeal, see State v. Flores, 301 Conn. 77 (2011).   The petitioner asserts that his imprisonment is illegal because his criminal defense counsel, Attorney John Franckling rendered ineffective assistance.   Specifically, he contends that Attorney Franckling improperly advised him concerning circumstances surrounding a plea offer and failed to move for a mistrial after a witness volunteered on the stand that the petitioner's two coaccused pleaded guilty.

Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims.  Johnson v. Commissioner, 218 Conn. 403, 425 (1991);  Ostolaza v. Warden, 26 Conn.App. 758, 761 (1992).   The Strickland criteria requires that the petitioner demonstrate, by a preponderance of the evidence, both that his attorney's performance was substandard and that the outcome of the proceedings would have been different.  Id.

As to the performance prong of Strickland, the petitioner must establish that trial counsel's representation fell below an objective standard of reasonableness.  Johnson v. Commissioner, supra.

This standard of reasonableness is measured by prevailing, professional norms.  Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel's conduct from that attorney's perspective at the time of the representation.  Id.

If it is easier to dispose of a claim of ineffective assistance on the ground of insufficient proof of prejudice, the habeas court may address that issue directly without reaching the question of counsel's competence.  Pelletier v. Warden, 32 Conn.App. 38, 46 (1993).   In order to satisfy the prejudice prong of the Strickland test, the petitioner must prove, by a preponderance of the evidence, that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.  Levine v. Manson, 195 Conn. 636, 640 (1985).   Reasonable probability means a probability sufficient to undermine confidence in the verdict.  Daeira v. Commissioner, 107 Conn.App. 539, 542–43 (2008), cert. denied, 289 Conn. 911 (2008);  that is, the petitioner must show that there is a reasonable probability that he remains burdened by an unreliable determination of guilt.  Id.

The two witnesses at the habeas trial were the petitioner and Attorney Franckling.   The petitioner acknowledged that his defense counsel had accurately and timely communicated to him all the terms of the negotiated plea, which entailed a total, effective unsuspended sentence of eight years.   However, the petitioner avows that Attorney Franckling erroneously conveyed to him the impression that he was likely to receive a more favorable outcome if he rejected the offer.   The petitioner also stated that Attorney Franckling neglected to inform him of the elements of the crimes with which he was charged and the maximum penalties attached to those crimes.

Attorney Franckling testified quite to the contrary.   He stressed that he, on multiple occasions, explained to the petitioner the elements of each crime and the maximum and minimum mandatory penalties applicable.   He repeatedly urged the petitioner to accept the plea offer which was kept open until trial commenced.   The petitioner stubbornly refused all of Attorney Franckling's entreaties to change his pleas.   On the eve of trial, Attorney Franckling spent over three hours “begging” the petitioner to reconsider his insistence on a trial.

The petitioner's intransigence stemmed from his unwarranted belief that neither of the two victims of the alleged robbery would appear to testify at trial.   His mistaken expectations were premised on facts that the male victim was a drug dealer and the female victim's testimony would jeopardize her entitlement to housing subsidy payments.

The court finds that Attorney Franckling's testimony was very trustworthy and that the petitioner's accusations against his defense counsel are unworthy of belief with respect to advice pertaining to the plea offer, the penalties which the petitioner faced, and the nature of the charges and evidence against him.   In the absence of credible evidentiary support, the petitioner has failed to meet his burden of proving these allegations of ineffective assistance.

As to the allegations that Attorney Franckling provided substandard representation by not moving for a mistrial, this specification of ineffectiveness also fails.   The male victim gratuitously remarked during his testimony before the jury that the coaccused had pleaded guilty to committing the robbery in question.   Both Attorney Franckling and the prosecutor immediately recognized the impropriety of the nonresponsive disclosure.

Attorney Franckling chose to finish his cross examination of that witness before addressing the issue.   He and the prosecutor requested that the trial judge give to the jury a curative instruction.   The trial judge acceded to this request and admonished the jury to ignore the extraneous comment.

Attorney Franckling consciously declined to move for a mistrial.   He regarded the transgression as minor and any impact as fleeting.   He even considered the possibility that the jury's knowledge of the codefendants' guilty pleas might inure to the petitioner's benefit, in that the disclosure could distinguish his participation and culpability from those of his cohorts who, in contrast to him, admitted their guilt.   His demand for a trial might, from the jurors' perspective, enhance his claim of innocence.

As mentioned above, no expert witness testified at the habeas trial that Attorney Franckling's tactical decision to refrain from requesting a mistrial fell beneath professional norms.

The burden rests on the petitioner to overcome the presumption that defense counsel's decision not to seek a mistrial “was anything other than sound trial strategy.”  Streater v. Commissioner, 143 Conn.App. 88, 107 (2013).

This court also concludes that the petitioner failed to establish the prejudice prong of the Strickland standard.   The remedy of mistrial is disfavored, even in criminal cases, State v. Reilly, 141 Conn.App. 562, 568 (2013).   That draconian solution should only be utilized when “it is apparent to the court that ․ a party cannot have a fair trial and the whole proceedings are vitiated,” Id. A trial court is vested with wide discretion when contemplating whether to declare a mistrial rather than take less drastic corrective action, Id.

This court's review of the evidence leads it to concur with Attorney Franckling's assessment that a motion for a mistrial was both unnecessary and unlikely to be granted because of the minor nature of the impropriety and the absence of pervasive taint preventing a fair proceeding.   This allegation of ineffectiveness also fails.

For those reasons, the amended petition for habeas corpus relief is denied.

Sferrazza, S.J.

Sferrazza, Samuel J., S.J.