Peter Boria v. Warden (2014)

MEMORANDUM OF DECISION

THE COURT:  During the break the Court has had the option to consider the documents, the evidence, information, the law, the testimony of the parties and now has listened to the parties' closing arguments

It's not necessarily a case of what the Court would consider of a complicated nature.   The petitioner makes generally a claim of ineffectiveness against counsel claiming that she was ineffective in regards to her representation during the guilty plea process, and or her investigation, and other things.

Generally you start with the Strickland v. Washington standard in a guilty plea case which is modified by the Hill v. Lockhart standard.   And I guess I'll take this both ways because I'm not—the petition is not exactly clear in which fashion the petitioner is making his argument so I'll take it both ways.

If it's a Hill v. Lockhart claim, it's a claim that the counsel's representation was deficient in their investigation, advice to the client, and other things meaning that she failed to perform with the competence of a reasonably educated attorney under same or similar circumstances and because of that the petitioner accepted a guilty plea rather than rejecting the plea and moving the case onto trial and the petitioner has failed to prove that.

And I will say that—and I will give credit and the case fails, in all honesty, I'd say based on Mr. Boria's honesty.   And I will give him credit for that because he sat up here and indicated and I believe was asked if he wanted to take this case to trial and he indicated that he was not prepared to do so and when I asked under all circumstances the sixteen years with your record, etc. appeared to be a decent offer under the circumstances.   He conceded that and said yes.   Even if he had attempted to challenge that, the Court heard no credible evidence before it today which would be required to prove prejudice that Mr. Boria was prepared to reject offers and to take the matter to trial which in a Hill v. Lockhart style ineffectiveness claim on a guilty plea case he's required to prove.   Not required to prove that he would win or that he'd be successful but he is required to prove through some credible evidence that he was at least prepared to reject the plea offer and take the case to trial and he was not.

By his own admission what he was looking for was a lesser plea offer not to proclaim his innocence and in fact, in his testimony here, nor in anything I've heard today, has there been any indication whatsoever that he has ever protested his innocence or his desire to have a trial or a hearing, it's just that he wanted a better pretrial offer.

So for those reasons the claim to the extent that it's a Hill v. Lockhart claim fails.   The claim could also be read that because of counsel's failures in what counsel seemed to indicate towards the end that Attorney Teitell was deficient in her representation or investigation and that that resulted in a less than optimal pretrial offer on behalf of the petitioner and that's related to claims that she failed to investigate, failed to present certain information to the Court such as have a psychological evaluation done or prepared before the plea was taken.

As to the witnesses, if the petitioner makes a claim that counsel's ineffectiveness was the result of a failure to present witnesses or evidence to the Court that should have been presented, it's the petitioner's burden at the habeas case to present those witnesses or that evidence so that the habeas court can evaluate what additional or different evidence those witnesses could have presented or what additional evidence there was, rule on its potential admissibility, and most importantly, what if any effect that information would have had at the stage of trial the petitioner claims it should have been used.

Here is a claim that certain witnesses and their statements and or their identification of the petitioner could have been evaluated, however, none of those witnesses were presented here.   There is nothing to challenge their credibility or the information presented and frankly, based on the fact that petitioner himself here has never claimed or never even insinuated during his own testimony that I did not do this and I was prepared to go to trial and assert my rights.   The issue of this identification in this Court's eyes is no more than a red herring.

Counsel could have investigated a number of things in the abstract.   The real issue is first, whether or not any investigation would have had any—the probability of having any beneficial result to the petitioner in any particular case and if so what affect it would have had on the case.

Here again, there's a lot about identification and there's a lot about the possibility that those identifications could have been challenged.   If that was the case it was the petitioner's burden to present those witnesses here and to present whatever evidence or issues or questions of the credibility of those identifications they claim defense counsel should have obtained.

With regards to the claim that defense counsel failed to properly discuss and advise the client of the facts and circumstances of the case, frankly the Court credits defense counsel's testimony.   She appeared to be thorough and competent and knowledgeable and frankly again, I'm going to give Mr. Boria some credit because I think to a great extent he was honest and the fact that he admitted here that once he was reminded that he understood the fact that he was facing a Part B information as a persistent felony offender and the fact that he was exposed to sixty years, leaves the Court with little doubt that counsel got to that part of the discussion without discussing the evidence and the circumstances in the case against him.   And again, the Court finds counsel credible.

There is also no correlation whatsoever between the amount of visits that an attorney has with a client and the quality or substance of those visits.   An attorney can frankly in any particular case can meet with a—possibly meet with a client one time and obtain all of the information and substance that's necessary to go about and review the case or there's other cases which are much more complicated that may require multiple visits and years of investigation.

Again, in this case the Court has heard no evidence but for the fact that this was a broad daylight armed robbery.   I think I heard no less than four individuals identify the petitioner and or connected him to the crime.   And again, there's been nothing whatsoever presented here to refute any of that evidence.   There's been some insinuation, but no evidence to refute any of that.

And so again, the substance and the length of the visits is not necessarily a correlation to the quality or the information that's delivered in those visits and the Court credits counsel's testimony that the petitioner was aware.

Additionally, there's a plea canvas which the petitioner appears to have made it through without any significant issues, any questions, any lack of understanding, and the law indicates that the Court is allowed to rely on those answers and responses as credible and accurate when given.   And when an individual is asked if he or she has any questions or lacks any understanding during the plea canvas and can answer that in the negative, then the Court is allowed to accept that as accurate and truthful when given and that again presents issues when a petitioner later comes in a habeas and claims that he did not or does not understand.

And again, as to the claims that counsel failed to prepare adequately for sentencing.   I may have somewhat addressed this but again, the petitioner makes generalized allegations that there could have been or may have been other information that counsel could have presented but again, no evidence and no substance that that evidence would have affected either the State's offer or the Court's offer.

This court did and again, I'm allowed to sort of—my job is to determine what if any affect a particular information would have had on a Superior Court judge when we're claiming about sentencing and the Court can say that it is likely, improbable at best, that a Part A judge would look at an individual who's got a thirty year criminal history, who is on probation for a robbery in the first degree, who commits another armed robbery in the first degree while he has twelve years hanging over his head, and would have been at all swayed by the claim that the petitioner has some mild mental health issues other than something that would have made him incompetent at the time he committed the crimes to be charged and convicted.

But with that kind of history, with that kind of—essentially getting out of jail and going back and committing the same armed violent criminal act again, it is unlikely and improbable that again, anything other than legal incompetence would have swayed a court to give him less than the time that Mr. Boria got.   There has to be a premium for going out and committing the same criminal acts again and the Court finds four years more than what he owed on probation not to be an unreasonable time period and frankly finds that under the circumstances counsel's job in getting the Court to cut nine years off of the State's offer was a significant win in and of itself based on his overall exposures.

So for all those reasons, the Court finds that the petitioner has failed to prove his claims.   The petition for writ of habeas corpus is denied.

The Court will order a transcript of my comments from this portion of the proceeding for my signature which will stand in lieu of a written memorandum of decision.   The clerk is ordered to provide Mr. Boria and counsel with notice of their rights to appeal which the record will reflect she is now doing.   Petitioner's counsel is required to prepare and file a judgment file within thirty days of today's date.

Notwithstanding that, if there is to be an appeal all appellate paperwork, notices, and other appellate filings are required to be filed within the time frames required by Practice Book and statutory sections.

And again, so the record is clear, if the Court missed anything, any specific allegation, I found in general that counsel appeared to be competent and knowledgeable, provided that she—I credit her testimony that she provided the petitioner with all of the information necessary for him to make a knowing, intelligent, and voluntary guilty plea.   That the petitioner entered his pleas because he wanted to and because he knew that the prospect of going to trial would have not been prosperous, that he was not prepared to go to trial, that the petitioner always wanted to resolve the matter, he just wanted to resolve the matter for a better pretrial agreement than what he got.

And again, to some extent I credit the petitioner for being honest about that much of it which is that he understood that although he didn't like the sentence that after all was done and considered, sixteen years was a fair and appropriate offer.

And so again, for those reasons the writ—petition is denied and unless there's anything that either side substantially thinks the Court missed for the record, we will stand adjourned.   Anything else?

ATTY. LENCZEWSKI:  No, thank you.

ATTY. DWYER:  No, Your Honor.   Thank you.

THE COURT:  All right.   We stand adjourned until 10 a.m. tomorrow morning.   Good luck, sir.

(Court is adjourned.)

Honorable John M. Newson, Judge

Newson, John M., J.