293994 v. Warden (2013)

MEMORANDUM OF DECISION

I. INTRODUCTION

The petitioner, Christopher Darazs, brings this petition for writ of habeas corpus seeking to vacate his guilty pleas to two counts of sexual assault in the first degree, General Statutes § 53a–70(a)(1) and one count of risk of injury to a minor, General Statutes § 53–21(a)(2) and have this case returned to the criminal docket for a new trial.   Specifically, he claims that his trial attorneys, Mark Solak and Christopher Cosgrove, rendered ineffective assistance of counsel with respect to their performance regarding circumstances leading up to the entrance of his pleas.   For the reasons that follow, the petitioner's habeas petition is denied.

II. PROCEDURAL HISTORY

On January 29, 2010, the petitioner entered guilty pleas to three charges.   First, under docket number CR090128113 (the “library incident”), he pleaded guilty to sexual assault in the first degree, General Statutes § 53a–70(a)(1).   The facts supporting this plea were that the petitioner had licked a minor child's vagina in a public library.

Second, under docket number CR080129236 (the “home incident”), he pleaded guilty to sexual assault in the first degree, General Statutes § 53a–70(a)(1).   The facts supporting this charge were that while a thirteen-year-old girl was sleeping on his girlfriend's couch, the petitioner held the girl down and licked her vagina.

Third, under docket number CR08–0128946 (the “pool incident”), he pleaded guilty to one count of risk of injury to a minor, General Statutes § 53–21(a)(2).   The facts supporting this charge were that the petitioner, while swimming at a public pool with an eleven-year-old girl, touched and rubbed the minor child's private area.   He also attempted to put his hands inside of the child's swimming shorts.

For the library incident, the petitioner was represented by Attorney Solak.   Attorney Cosgrove represented the petitioner in both of the other cases.

On April 9, 2010, the trial court, Ginocchio, J., sentenced the petitioner in accordance with the plea agreement to a total effective sentence of forty years, execution suspended after seventeen years and thirty-five years of probation.   The petitioner did not file a direct appeal.

On December 8, 2011, the petitioner filed the instant petition for writ of habeas corpus.   Subsequently, the habeas court appointed Attorney Dante Gallucci to represent the petitioner in this habeas case.   Thereafter, on October 1, 2013, Attorney Gallucci filed an amended petition.   In the amended petition, the petitioner alleges ineffective assistance of both attorneys Solak and Cosgrove.¹  On October 31, 2013, the respondent filed a return denying the petitioner's allegations of ineffective assistance of counsel.

On December 3, 2013, this court held a hearing on the petitioner's habeas petition.   At the hearing, the petitioner testified and called as witnesses both attorneys Solak and Cosgrove.   The petitioner also submitted as exhibits, the transcript of the plea canvass, transcript of the sentencing hearing and transcript of his pro se motion to withdraw his guilty pleas.   See Petitioner's Exhibits 1, 2 & 3. The respondent called no witness but did submit as exhibits informations from each of the dockets under which the petitioner had entered his pleas.   See Respondent's Exhibits A–C.

III. DISCUSSION

“In Strickland v. Washington, [466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction ․ That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense [by establishing a reasonable probability that, but for the counsel's mistakes, the result of the proceeding would have been different] ․ Unless a [petitioner] makes both showings, it cannot be said that the conviction ․ resulted from a breakdown in the adversary process that renders the result unreliable ․

“For ineffectiveness claims resulting from guilty pleas, [this court applies] the standard set forth in Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), which modified Strickland 's prejudice prong ․ Under ․ Hill ․ the evidence must demonstrate that there is a reasonable probability that, but for counsel's errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial ․” (Internal quotation marks and citations omitted.)  Gonzalez v. Commissioner of Correction, 127 Conn.App. 454, 457–58, 14 A.3d 1053, cert. denied, 302 Conn. 933, 28 A.3d 991 (2011).

Our Supreme Court has held that to prove prejudice in the guilty plea context, a petitioner must show that he would have elected to have a trial rather than plead guilty and that the outcome was likely to be more successful.  Copas v. Commissioner, 234 Conn. 139, 151, 662 A.2d 718 (1995).   Recently, our Appellate Court ruled that Copas was an erroneous reading of the holding in Hill v. Lockhart and thus concluded that a showing of prejudice requires only that the petitioner would have insisted on going to trial had he been properly advised by his counsel.   See Carraway v. Commissioner, 143 Conn.App. 461, 469–77, 72 A.3d 426 (2013).   In this case, the petitioner has not demonstrated deficient performance on behalf of either of his trial attorneys, therefore, this court need not address the prejudice prong and the Copas/Carraway conflict.  Johnson v. Commissioner of Correction, 144 Conn.App. 365, 370, 73 A.3d 776, cert. denied, 310 Conn. 918 (2013) (“a court need not consider the prejudice prong if it determines that the petitioner has failed to meet the burden of proving deficient performance”).

A. Ineffective Assistance of Counsel Claims

The court will address each of the contentions the petitioner has alleged in count one, paragraph six of his amended petition.   The court will include factual findings where necessary.

(a) Trial counsel failed to adequately and effectively discuss with the petitioner the state's evidence against the petitioner, including police reports, witness statements, or other evidence prior to the petitioner's entering a plea which prejudiced the petitioner in not permitting him to make a knowing, intelligent and voluntary waiver of his right to a jury trial.

The credible evidence presented at the habeas hearing extinguishes this claim.   The court finds that both attorneys Solak and Cosgrove had discussed with the petitioner all the evidence the state had against the petitioner.   As such, this contention fails.   The court's finding is based on the following evidence.

During both direct examination and cross examination, the petitioner himself admitted that his attorneys had discussed with him the state's evidence.   Specifically, on direct examination, the petitioner testified that on the ten to fifteen occasions he met with his attorneys at the courthouse, he would on some of those occasions discuss his cases.   Then, on cross examination, the petitioner further admitted that in all three cases, he discussed with his attorneys the evidence the state had against him.

Attorney Solak confirmed that he met with the petitioner at court approximately ten to fifteen times.   He also testified that he reviewed and discussed with the petitioner the arrest warrant affidavits, police reports and DNA evidence the state had against the petitioner.   Attorney Cosgrove likewise testified that he met with the petitioner many times prior to the petitioner entering his plea and reviewed with the petitioner police warrants, police reports and informations.

Finally, the plea canvass also reflects that the trial court asked the petitioner directly whether his attorneys had discussed with him the evidence the state had in its possession, to which the petitioner responded, “yes.”   Petitioner's Exhibit 1.

Based on the petitioner's own admissions and the credible testimony of attorneys Solak and Cosgrove, the court finds that the petitioner has not demonstrated that either attorney performed deficiently.

(b) Trial counsel did not adequately investigate the case and potential defenses for the petitioner.

The petitioner has not satisfied his burden of demonstrating that either of his attorneys failed adequately to investigate his case.   Indeed, it is the “obligation [of the attorneys] to investigate all surrounding circumstances of the case and to explore all avenues that may potentially lead to facts relevant to the defense of the case.”  Walton v. Commissioner of Correction, 57 Conn.App. 511, 522, 749 A.2d 666, cert. denied, 254 Conn. 913, 759 A.2d 509 (2000).   Based on the evidence presented, both attorneys satisfied this standard.

As an initial matter, the petitioner has presented no evidence to show that either attorney failed to adequately investigate his case.   He made no mention in his testimony before this court of anything that either attorney should have investigated that was not investigated.   Thus, his claim of inadequate investigation already rests on shaky ground.  “The failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense.   Defense counsel will be deemed ineffective only when it is shown that a defendant has informed his attorney of the existence of the witness and that the attorney, without a reasonable investigation and without adequate explanation, failed to call the witness at trial.   The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it.”  State v. Talton, 197 Conn. 280, 297–98, 497 A.2d 35 (1985).

Notwithstanding that lapse, evidence was presented to show that neither attorney performed deficiently with respect to the investigation.   Attorney Solak testified that he had reviewed the state's evidence and discussed that evidence with the petitioner before recommending that he accept a plea.   Attorney Cosgrove testified that the petitioner had asked him to investigate whether the victim in the home incident was fabricating her story.   Specifically, the petitioner had asked Attorney Cosgrove to speak with the petitioner's then girlfriend who the petitioner indicated was at the home on the day of that incident.   In response to the petitioner's request, Attorney Cosgrove spoke with the petitioner's girlfriend.   The girlfriend verified that the victim and the petitioner were both in the home on the date in question, however, Attorney Cosgrove learned that she did not witness the sexual assault.   This court fails to see, and more significantly, the petitioner has not demonstrated, what further investigation was necessary.

As to whether the attorneys adequately investigated any potential defenses, the court also concludes that there was no deficient performance.   At the hearing, the petitioner testified at one point that his defense to these charges was that he did not commit the crimes.   Later, he contradicted that testimony by admitting that there was a basis for the charges.   He attempted to clarify his admission by stating that he simply did not commit the crimes in exactly the manner that the victims had alleged.   The petitioner's own admission that there was a basis for these crimes is the more credible of his equivocal responses and undermines, if not eviscerates, his allegations that his defense was that he did not commit these crimes.

Furthermore, Attorney Solak testified that the petitioner never informed him of any defenses to the charge regarding the library incident.   Also, Attorney Solak testified that the petitioner had changed his story during the course of his representation of the petitioner.   At first, the petitioner claimed that he did not commit the crime.   Later on, the petitioner admitted that he did have contact with the minor child in the library.   This led Attorney Solak to conclude that the petitioner's version of events was not likely to be believed by a jury.   This was a reasonable belief.   No further investigation appears to have been necessary.   See Walton v. Commissioner of Correction, supra, 57 Conn.App. 522 (“counsel need not track down each and every lead or personally investigate every evidentiary possibility before choosing a defense and developing it”).   Given the petitioner's own responses, there did not appear to be a valid defense to the charges which left seeking the most favorable plea deal as the best possible option.

Similarly, with Attorney Cosgrove, the petitioner initially claimed that he had not committed the crimes.   However, as time went on, the petitioner admitted that the victim's allegations regarding the home incident were true.   As to the pool incident, the petitioner admitted that he attempted to touch the minor child.   Thus, under these circumstances, it appears that there was no viable defense and the best strategy was to secure the best possible plea deal.   The petitioner has not demonstrated any deficient performance on behalf of his attorneys.

(c) Trial counsel failed to seek a psychiatric evaluation of the petitioner as to whether the petitioner was competent to enter a knowing, voluntary and intelligent plea, or whether the petitioner suffered from any mental or physical condition which may have been a mitigating factor.2

At the habeas trial, the petitioner failed to present any evidence that he suffered from a psychiatric ailment that would have prevented him from entering a knowing, voluntary and intelligent plea.   See, e.g., George M. v. Commissioner of Correction, 290 Conn. 653, 661, 966 A.2d 179 (2009) (“It is axiomatic that ‘the party who affirmatively alleges a fact has the burden of proving it’ ”).   Although the petitioner did testify that he was seeing a psychiatrist at the time of his plea, the court was not presented with any evidence regarding how the mere fact that he was seeing a psychiatrist affected his ability to enter a plea.   Thus, this claim fails.

In any event, the court finds credible Attorney Solak's testimony that he saw nothing at the time of the plea to indicate that the petitioner did not understand the proceedings.   The court also finds credible Attorney Cosgrove's testimony that the petitioner never informed him that he had any difficulty understanding the process of the plea.   Significantly, Attorney Cosgrove testified that the petitioner in fact had a competency evaluation and was deemed competent prior to entering his plea.   Attorney Cosgrove further testified credibly that he was aware that the petitioner was depressed and taking anxiety medication, however, he did not believe that either of those things affected the petitioner's ability to enter his plea.

In sum, given the results of the competency evaluation and both attorneys' own observations, neither attorney had any reason to question the petitioner's ability to enter a constitutionally valid plea.   See Johnson v. Commissioner of Correction, supra, 144 Conn.App. 370 (petitioner's counsel credibly testified he had no reason to question petitioner's competency).   As in Johnson, the petitioner here has failed to demonstrate that his attorneys had any reason to believe he was not competent or did not understand the proceedings.

(d) Trial counsel failed to obtain a specific plea agreement prior to petitioner entering his plea, nor did he adequately prepare for the plea procedure, nor advise petitioner as to what specific charges the petitioner would be entering a plea to, including the elements of each crime.

It is unclear what specific plea agreement the petitioner claims his attorneys should have obtained prior to entering his plea.   He presented no evidence regarding any specific plea agreement he sought.   In fact, the evidence presented showed that the trial court had issued a one-day offer of fourteen years to serve, which the petitioner rejected.   This offer undoubtedly resulted from negotiations between the petitioner's attorneys, the prosecutor and the trial judge.   Indeed, Attorney Solak explained that before the court extended its one-day offer of fourteen years, there was “give and take” in the pre-trial process and that Judge Ginnochio takes a “hands-on” approach to plea negotiations.   He further testified that both attorneys had been trying to resolve all the cases at once, an approach the court finds to be eminently prudent, as the petitioner stood to gain the most from a global resolution of all cases.   Additionally, Attorney Cosgrove credibly testified that he had discussed with the petitioner various offers that were made.   Thus, the court concludes that the attorneys did obtain offers prior to the petitioner entering his plea.

The evidence also establishes that the attorneys explained to the petitioner the charges to which he was pleading as well as the elements of those charges.   The court does not find credible the petitioner's testimony that his attorneys failed to discuss with him the elements of his charges.   The court finds credible Attorney Solak's testimony that he and Attorney Cosgrove reviewed with the petitioner the charges he was facing and that he specifically had discussed with the petitioner the elements of sexual assault in the first degree before the petitioner entered his plea.   The court also finds credible Attorney Cosgrove's testimony that he and Attorney Solak had discussed all three cases with the petitioner and that he specifically had gone over the elements of sexual assault in the first degree with the petitioner as well.

Moreover, the plea canvass reveals that the petitioner admitted that his attorneys had in fact explained to him the nature and elements of the charges to which he was pleading guilty.   Petitioner's Exhibit 1. Thus, the petitioner has failed to demonstrate that his attorneys rendered deficient performance.

(e) Trial counsel failed to present mitigating factors at sentencing

This contention may be summarily rejected because the petitioner has not presented any mitigating evidence at the habeas hearing that his attorneys should have presented at sentencing.   Furthermore, Attorney Cosgrove testified—and this court has no reason to doubt—that the petitioner had no right to argue for less time at sentencing.   Notwithstanding that, Attorney Solak argued that a mitigating circumstance was that the petitioner opted to plead guilty rather than force the minor victim to testify in this case.   Attorney Cosgrove pointed out, as a mitigating factor, that the petitioner's father had been out of the petitioner's life for a long time.   See Petitioner's Exhibit 3. Thus, even though it appears that no mitigating information was necessary, given that the sentence was an agreed upon sentence with no right to argue for less, the attorneys still did present at least some mitigating information.   Stated differently, his attorneys did not perform deficiently by not presenting extensive mitigating evidence.

IV. CONCLUSION

The court finds that the petitioner has failed to demonstrate that either of his attorneys rendered deficient performance.   As such, and for all the foregoing reasons, the amended petition is denied.

Mullins, J.

FOOTNOTES

FN1. The petitioner's claims of ineffective assistance of counsel are laid out in count one, paragraph six of his amended petition.   See Petitioner's Amended Habeas Petition.   Although he does not clearly indicate whether he is challenging the representation of both of his attorneys, the court will nonetheless presume that all the allegations apply equally to both attorneys Solak and Cosgrove..  FN1. The petitioner's claims of ineffective assistance of counsel are laid out in count one, paragraph six of his amended petition.   See Petitioner's Amended Habeas Petition.   Although he does not clearly indicate whether he is challenging the representation of both of his attorneys, the court will nonetheless presume that all the allegations apply equally to both attorneys Solak and Cosgrove.

FN2. In the petitioner's amended petition, under count one, paragraph six, subsection (e), the petitioner alleges that “trial counsel did not ensure that petitioner was capable of entering a knowing, voluntary and intelligent plea.”   This allegation is virtually indistinguishable from subsection (c).  As such, both claims fail for the same reasons as articulated in Section IIIA(c) above.   Thus, the court will not separately analyze subsection (e) in this decision..  FN2. In the petitioner's amended petition, under count one, paragraph six, subsection (e), the petitioner alleges that “trial counsel did not ensure that petitioner was capable of entering a knowing, voluntary and intelligent plea.”   This allegation is virtually indistinguishable from subsection (c).  As such, both claims fail for the same reasons as articulated in Section IIIA(c) above.   Thus, the court will not separately analyze subsection (e) in this decision.

Mullins, Raheem, J.