Robert Dearing v. Warden, State Prison (2014)

MEMORANDUM OF DECISION

The petitioner, Robert W. Dearing, was convicted, after a jury trial, of first degree sexual assault and risk of injury to a minor, for which crimes he presently serves a total, effective sentence of thirty years, execution suspended after twenty years, with twenty years probation.   The petitioner asserts that his defense counsel, Attorney Kevin Smith, Norman Pattis, and Kelly Rommel provided ineffective assistance with respect to the petitioner's rejection of the prosecutor's plea offer to recommend a total, effective sentence of eighteen years, execution suspended after ten years, probation of ten years, in exchange for guilty pleas.

Specifically, the petitioner alleges in his amended petition that his counsel never “meaningfully” conveyed the plea offer to him;  that counsel never fully informed the petitioner about the state of the evidence for and against him;  that his counsel misadvised him that a guilty plea would entail sex offender registration which could bar the petitioner from residing with his own children;  that his counsel failed to explain that the maximum sentence after trial could be thirty-five years imprisonment;  and that defense counsel failed to discuss the possibility of an Alford plea and the beneficial aspects of the Alford doctrine.

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.

In 2012, the United States Supreme Court recognized the legitimate use of habeas corpus as a source of relief when an inmate contends that trial counsel inadequately communicated to the client information necessary for the client to make a prudent decision whether or not to accept a plea offer before the offer lapsed, Missouri v. Frye, 132 S.Ct. 1399 (2012);  Lafler v. Cooper, 132 S.Ct. 1376 (2012).   The legal analyses of these cases were adopted by the Connecticut Supreme Court, Ebron v. Commissioner, 307 Conn. 342 (2012).

In order to meet the prejudice component as adopted by the Ebron case, the petitioner has to prove, by a preponderance of the evidence, that but for his attorney's missteps he would have changed his plea to guilty in order to effectuate the proposed disposition, Ebron v. Commissioner, supra, 349–50.

The petitioner testified at the habeas trial that, in January 2009, Attorney Smith informed him that the prosecutor offered to recommend a sentence which included twenty years imprisonment.   The petitioner rejected the offer so described because he was innocent and because Attorney Smith advised him that a better offer was likely in the future.   The petitioner related that Attorney Smith also opined that the future offer would probably involve thirty years, execution suspended after seventeen or eighteen years.

At the time of his criminal trial, the petitioner was twenty-nine years old and married, but he had no children.   He contends that Attorneys Smith and Pattis advised him that if he pleaded guilty, in accordance with the plea offer, he would be forever barred from living in the same home as any children he fathered in the future.   He further stated that these attorneys never told him about the availability of an Alford plea under the precepts of North Carolina v. Alford, 400 U.S. 25 (1970).   He also testified that his defense counsel never communicated to him a plea offer of eighteen years, execution suspended after ten years.   He claims that he first learned of this offer postconviction and through his appellate counsel.   He avows that had he known of that offer, the possibility of an Alford plea, and that he could lawfully reside with his own future offspring, he would have accepted the plea offer.

During cross-examination, the petitioner acknowledged that he knew the victim had cognitive disabilities, that he erroneously predicted that she would recant her accusations at trial, and that he believed some unidentified, third party was the moving force behind the victim's false accusations against him.

Attorney Smith also testified at the habeas hearing.   He and Attorney Pattis have very extensive experience representing criminal defendants charged with sexual assault of minors.   Attorney Smith was lead counsel, and he thoroughly familiarized himself with all the evidence and legal aspects of the petitioner's case.   He and the petitioner discussed the case many times in person at the lawyers' office, at the courthouse, and by phone.   Throughout these meetings and conversations, the petitioner fervently maintained his innocence and adamantly demanded the opportunity to vindicate himself at a trial.

The petitioner persisted in this desire despite Attorney Smith's presentation to him of all the relevant evidence and the difficulty in overcoming the jurors' natural tendency to sympathize with and believe a child, especially one with intellectual deficits.   Attorney Smith diligently relayed every plea offer to the petitioner, and that attorney reckoned that a twenty-year prison sentence recommendation would eventually be offered by state.   Attorney Smith never told the petitioner that a twenty-year recommendation was actually offered.

On September 29, 2009, the petitioner's jury trial was set to begin in November 2009.   On October 10, 2009, the prosecutor, for the first time, offered to recommend a total, effective sentence of eighteen years, suspended after ten years.   Attorney Smith explicitly discussed this offer with the petitioner, and he memorialized the substance of that discussion in a written memorandum.   That memorandum disclosed the date of that offer, its terms, and that no similar offer preceded it.

The petitioner responded to this offer in writing.   He expressed the feeling that, by accepting the offer, “his life would be over.”   He reiterated his confidence in his attorneys' ability to “fight” on his behalf.   In sum, the petitioner flatly refused the state's offer at that time.

Despite that rejection, the prosecutor tentatively kept the offer open during jury selection.   Attorney Smith specifically reminded the petitioner of the terms described above and informed him that the offer might be withdrawn at any time.   Attorney Smith also went to great lengths to dispel any misconception harbored by the petitioner that a better offer would ensue.   The petitioner repeatedly told Attorney Smith that he “[couldn't] do ten years.”

Attorney Smith also discussed with the petitioner the mandatory minimum sentences and sex offender registration.   He never told the petitioner that acceptance of the State's plea offer would prohibit the petitioner from ever having children.

Attorney Smith did discuss with the petitioner, however, that the petitioner's wife would seek a divorce if he were convicted.   Shortly after the guilty verdicts, the petitioner's wife sought and obtained that divorce.

On numerous occasions, Attorney Smith assured the petitioner that, if the petitioner desired, he would make a counteroffer on the petitioner's behalf.   The petitioner expressly declined to have any counteroffer communicated by Attorney Smith to the prosecutor.   Also, the petitioner never inquired whether the prosecutor had offered a new recommendation.

The court finds that Attorney Smith's habeas testimony was very credible and supported by other evidence.   On the other hand, the court determines that the petitioner's version of these events is unworthy of belief and refuted by the few written documents introduced at the habeas trial.   Consequently, the court concludes that the petitioner has failed to satisfy his burden of proving by a preponderance of the evidence, any of his specifications of ineffective assistance by his defense team.

The amended petition for habeas corpus relief is, therefore, denied.

Sferrazza, S.J.

Sferrazza, Samuel J., S.J.