Michael Coderre v. Warden, State Prison (2013)

MEMORANDUM OF DECISION

The petitioner, Michael Coderre, seeks habeas corpus relief from his convictions, in two criminal cases, of first degree unlawful restraint and violation of a protective order as a persistent violator.   These convictions followed his guilty pleas, under the doctrine of North Carolina v. Alford, 400 U.S. 25 (1970).   He serves a total, effective sentence of 731 days imprisonment and five years special parole, consecutive to a sentence in an unrelated matter.   The bases for the petitioner's amended petition is the alleged ineffective assistance of his defense counsel, Attorney Jerome Paun, and a free-standing claim that his guilty pleas were involuntary.

I

Free–Standing Involuntary Plea Claim

The petitioner avers that at the time he pleaded guilty he suffered from severe depression, suicidal ideation, and was under the influence of medication which impaired his ability to plead guilty voluntarily.   The court holds that a habeas petitioner cannot lawfully seek habeas relief on this basis.

The petitioner makes no claim that the trial judge failed to conduct an adequate plea and/or sentencing proceeding.   Nor does he contend that the trial judge's finding of voluntariness was unsupported by the record at the plea hearing.   The petitioner never moved to withdraw his pleas under Practice Book § 39–27, nor did he appeal his convictions after sentencing.

Practice Book § 39–26 states that a “defendant may not withdraw his or her plea after the conclusion of the proceeding at which the sentence was imposed.”   Therefore, this free-standing claim fails to state a ground for which habeas corpus relief is available.   This claim is, therefore, dismissed.   The court notes that the petitioner seeks similar relief under an ineffective claim which the court now addresses.

II

Ineffective Assistance

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.

The United States Supreme Court has also set forth the prejudice standard for weighing ineffective assistance claims with respect to the entry of guilty pleas.  Hill v. Lockhart, 474 U.S. 52, 59–60 (1985).   The criterion for the prejudice prong announced in Hill v. Lockhart, supra, was incorporated into our habeas law.  Copas v. Commissioner, 234 Conn. 139, 156–57 (1995).   Under these cases, the habeas petitioner must show that, but for counsel's unprofessional representation, the petitioner would have elected to have a trial rather than plead guilty.

There is also controversy as to whether a habeas petitioner who asserts that his or her defense counsel rendered substandard representation which resulted in a guilty plea must prove, by way of prejudice, merely that the petitioner would have elected to proceed with a trial had the defendant been properly advised or must the petitioner also prove that the aftermath of any trial would have been more favorable than the result of the flawed guilty plea.   Our Supreme Court has held that the prejudice prong of Strickland, as modified by Hill v. Lockhart, 474 U.S. 52, 59–60 (1985), demands proof that the outcome of the entire criminal process was reasonably probable to have been more successful, Copas v. Commissioner, 234 Conn. 139, 151 (1995).   Our Appellate Court followed this precedent in Gonzalez v. Commissioner, 124 App. 740, 744–49 (2009);  and State v. Aquino, 89 Conn.App. 395, 408 (2005).   However, very recently, an Appellate Court panel held that the Connecticut Supreme Court's decision on this issue in Copas v. Commissioner, supra, was an erroneous reading of the holding in Hill v. Lockhart, supra.   See Carraway v. Commissioner, AC 33963, 143 Conn.App. 461 (July 30, 2013).

The petitioner alleges in particular that Attorney Paun provided deficient legal assistance by misadvising him, during discussions concerning accepting or rejecting the prosecution's plea offer, that he would be eligible for release on parole after service of fifty percent of any sentence imposed for first degree unlawful restraint when the correct percentage was eighty-five percent, and by failing to recognize the need to investigate the petitioner's mental state and realize that on October 18, 2011, the petitioner was incapable of voluntarily pleading guilty.

A.

Regarding the assertion that Attorney Paun incorrectly informed the petitioner that if he pleaded guilty to first degree unlawful restraint he would be eligible for parole after serving only fifty percent of the sentence imposed for that crime, the petitioner makes no claim that Attorney Paun represented the petitioner deficiently by failing to advise him as to parole eligibility at all.   As the petitioner's habeas counsel conceded during final argument, his allegation of ineffective assistance is limited to misstating the minimum percentage to be served before parole release was possible.   Therefore, the petitioner must prove, by a preponderance of the evidence, that Attorney Paun erroneously recited the fifty percent figure before the petitioner decided to accept the negotiated plea involving that crime.   Otherwise the misinformation could have played no role in the petitioner's decision to plead guilty.   It appears undisputed that eighty-five percent was the correct percentage.

Attorney Paun testified at the habeas hearing that he never discussed parole eligibility with the petitioner before the petitioner accepted the prosecutor's offer, entered the guilty plea, and was sentenced.   The petitioner first inquired about parole eligibility in a voicemail to Attorney Paun recorded about a month after sentencing.   Attorney Paun responded to the petitioner's inquiry in a letter dated November 24, 2011.   It was in this postsentencing communication that Attorney Paun incorrectly advised the petitioner that he “should be eligible for early release review after [he] completed one-half of the TES imposed minus jail time credit.”   Attorney Paun also wrote, “Please understand that just because you should be eligible for review after serving fifty per cent of your sentence does not mean you will be released at that time.   DOC could easily decide for any number of reasons in your case, not the least of which is your lengthy criminal history, that you should remain incarcerated pending another review after serving more of your sentence.”

The petitioner testified at the habeas hearing that he and Attorney Paun discussed parole eligibility before he elected to accept the plea offer.   He recounted that Attorney Paun used the fifty percent figure to entice the petitioner to change his pleas.

The court finds that Attorney Paun's testimony was more credible and determines that the subject of parole eligibility arose only after sentencing.   The language and tenor of Attorney Paun's letter in November 2011 persuades the court that this postsentence exchange was the first time that this topic was discussed between Attorney Paun and the petitioner.   Consequently, the petitioner cannot prevail on this allegation of ineffective assistance.

B.

The remaining specification of ineffective assistance asserts that Attorney Paun ought to have investigated whether the petitioner's mental state was such that the petitioner was incapable of voluntarily changing his plea on October 18, 2011.

The petitioner testified that during the time leading up to that date, he was experiencing extreme stress and frustration about facing unwarranted charges of sexual assault of his stepson, was suicidal, and was taking medication which caused him to be confused and unduly compliant.   The petitioner had been struck by motor vehicles in 1989 and 1992.   He sustained many broken bones and serious injuries to internal organs.   These injuries afflict the petitioner with lingering and intractable pain.   Significantly, the petitioner also sustained a massive traumatic brain injury in one of the accidents which has resulted in permanent cognition problems for the petitioner.

During the six months preceding his plea, the petitioner received medication to alleviate pain and stabilize his thought processes regarding his pending criminal cases.   The petitioner avows that he was deeply distressed and suicidal and was transferred to a correctional facility better equipped to handle suicidal inmates a few days before his trial was to begin.   Throughout the six-month period, the petitioner was medicated with the antidepressant amitripyline, marketed as Elavil.

Dr. Richard L. O'Sullivan testified at the habeas hearing on behalf of the petitioner.   Dr. O'Sullivan is a highly trained psychiatrist with extensive experience in treating confined persons suffering from mental illness.   He is also trained in psychopharmacology.   Dr. O'Sullivan reviewed the petitioner's medical history and interviewed the petitioner in order to form an opinion regarding the petitioner's state of mind on October 18, 2011.

Dr. O'Sullivan's review of this history and interviews of the petitioner disclosed that the petitioner's trauma brain injury left him with significant cognitive limitation with regard to decision-making.   The petitioner is prone to arrive at a decision based on near-term results rather than fully appreciating the need to consider long-term consequences.   Dr. O'Sullivan also noted that the petitioner was a longtime abuser of alcohol and had exhibited signs of learning disability which predate the traumatic brain injury.

Further Dr. O'Sullivan related that Elavil can cause side-effects which may include drowsiness, loss of motivation, and confusion.   He opined that the extreme stress and consternation provoked by the petitioner's imminent jury trial joined with the petitioner's cognitive deficits and use of Elavil so diminished the petitioner's ability to resist the pressure to accede to his attorney's advice to accept the plea offer that his acceptance of that offer was simply capitulation to that stress rather than voluntary relinquishment of his chance for vindication at trial.

To be clear, Dr. O'Sullivan did not suggest that the petitioner was incompetent to understand the nature of the charges against him or Attorney Paun's advice with respect to the plea offer.   Rather Dr. O'Sullivan concluded that, while the petitioner understood the explanations regarding these issues, the petitioner's emotional state disabled him from beneficially processing that information so as to regard future events into proper perspective when making his decision.

Attorney Paun testified at the habeas hearing that he had represented the petitioner on multiple occasions in the past.   Attorney Paun is a well-trained and experienced criminal defense lawyer.   He has represented criminal defendants in hundreds of cases in the past including around twenty-five jury trials.

Before the petitioner pleaded guilty in the case underlying this habeas action, Attorney Paun and the petitioner discussed the criminal charges on dozens of occasions, both at the jail and at the courthouse.   The petitioner was originally charged with third degree sexual assault in one file and violation of a protective order as a persistent offender in another, as well as lesser charges.   If convicted after trial on all charges, the petitioner faced a maximum potential prison term totaling thirty-six years.

The sexual assault charge was based on an allegation that the petitioner engaged in unwanted sexual acts upon his stepson who lived with the petitioner and his wife.   There were no witnesses or evidence for or against the petitioner except for himself and the victim.   Also, the petitioner's wife was willing to testify that she never awoke, as she would have, if the petitioner had left her bedroom and entered that of the victim.

The petitioner has and had at the time of his impending jury trial a lengthy criminal history of convictions including felonies.   Also, the petitioner had admitted a violation of probation in July 2011 in a case where he was also represented by Attorney Paun. The petitioner was serving a four-year sentence in that case when the sexual assault and violation of protective order cases were to commence jury selection on October 18, 2011.

The petitioner had refused all previous plea offers because they entailed a conviction for sexually assaulting his stepson.   The petitioner wanted to avoid registering as a sex offender.   He also dreaded the prospect of serving a prison sentence after being labeled as a homosexual sex offender lest other inmates learn of this characterization.

On the first day of jury selection, the prosecutor relented and offered to substitute the charge of first degree unlawful restraint for the sexual assault charge.   The prosecutor also agreed to recommend a total, effective sentence of two years incarceration with five years of special parole, consecutive to the four-year sentence for the violation of probation, if the petitioner pleaded guilty to the unlawful restraint and persistent violator of protective orders charges.

At all times on October 18, 2011, the petitioner appeared lucid, engaged, and cogent to Attorney Paun. The petitioner's demeanor resembled every other encounter Attorney Paun had with him.   Preparatory to discussing the guilty pleas, Attorney Paun specifically asked the petitioner if he had consumed any alcohol, drugs, or medication that day, and the petitioner denied that he had.   During the plea canvass by the trial judge, the petitioner also denied being “under the influence of drugs, alcohol, or medication ․ that would affect [his] ability to plead guilty.”   The petitioner also acknowledged for the record that he entered his guilty pleas, under the Alford doctrine, freely, voluntarily, and without coercion.

The respondent presented the testimony of Dr. Gerard Gagne, who is a well-trained psychiatrist who has worked with inmates for many years.   His postdoctoral work includes the diagnosis and treatment of depression.   Dr. Gagne also reviewed the petitioner's medical history and interviewed him twice.   He found the petitioner quite capable of comprehending instruction and following directions.   Dr. Gagne opined that the dosage of Elavil taken by the petitioner in 2011 was too low to impair the petitioner's cognitive function.   He observed that the petitioner had entered the admission of the violation of probation in July 2011 without any difficulty despite taking the same level of Elavil as in October 2011.   Dr. Gagne further noted that even if the petitioner had ingested an excessive quantity of Elavil, that overdose would not manifest the symptoms which the petitioner claims he experienced on October 18, 2011.   None of the medications administered to the petitioner were “mind altering.”   Dr. Gagne also testified that one debilitating consequence of trauma brain injury is impulsiveness.   Elavil helps quell this negative activity of the mind.

Importantly, Dr. Gagne questioned the petitioner concerning his complaints to correctional staff of thoughts of suicide.   Dr. Gagne determined that the petitioner admitted malingering in the reports of suicidal ideation in order to secure more desirable accommodations.   The petitioner specifically acknowledged falsely reporting suicidal thoughts a few days before his jury trial was to begin in October 2011.

The court finds that the petitioner has failed to prove that his pleas of guilty, under the Alford doctrine, were involuntary and the product of an impaired mental state.   Therefore, his allegations of ineffective assistance against Attorney Paun for failure to recognize that putative mental deficiency also fails.   Most defendants facing the uncertainty of the outcome of a jury trial, the potential of a very lengthy prison term, the obligation to register as a sex offender, and the possibility of having to endure prison life under constant fear of being labeled as a homosexual will experience heavy pressure to avoid those risks despite their claim of innocence.   But the petitioner exhibited no signs of mental implosion which crushed his capacity to act voluntarily and accept the plea disposition before him.   Indeed, he stated so to his attorney privately and to the trial judge on the record.

For these reasons, the amended petition is denied as to the ineffective assistance claims.

Sferrazza, S.J.

Sferrazza, Samuel J., S.J.