Joseph Mincewicz v. Warden, State Prison (2014)

MEMORANDUM OF DECISION

The petitioner, Joseph Mincewicz, is self-appearing and seeks habeas corpus relief from a total, effective sentence, after guilty pleas, of nine years incarceration, followed by ten years special parole, for the crimes of robbery first degree;  possession of narcotics;  attempted larceny fourth degree;  and an admission of a violation of probation.   The petitioner's amended petition, filed on August 12, 2013, contains three counts which allege ineffective assistance of defense counsel, Attorney Catherine Teitell;  judicial errors;  and prosecutorial misconduct, respectively.   Summary Judgment in favor of the respondent was granted as to the second count by Judge Cobb on January 23, 2014.

Count Three—Prosecutor Misconduct

In the third count the petitioner vaguely avers that former State's Attorney John Connelly withheld exculpatory or mitigating information.   The count lacks any factual allegations particularizing this assertion.   After reviewing the evidence submitted in this case, the court discerns no evidentiary support for this allegation whatsoever.

Count One—Ineffective Assistance

As mentioned above, the petitioner pleaded guilty to the crimes for which he is now imprisoned.   The general rule is that a guilty plea waives all nonjurisdictional defects antecedent to the entering of the plea, including defects asserting constitutional deprivations, State v. Madera, 198 Conn. 92 (1985), p. 97;  State v. Banks, 24 Conn.App. 408 (1991);  p. 412.   Only defects which implicate the subject matter jurisdiction of the court survive a later valid guilty plea, and defects asserting a lack of personal jurisdiction over an accused are waived by a subsequent guilty plea, Reed v. Reincke, 155 Conn. 591 (1967), p. 597;  State v. Baez, 194 Conn. 612 1984, p. 616;  McKnight v. Commissioner, 35 Conn.App. 762, 764 (1994);  cert. denied 231 Conn. 936 (1994);  State v. Niblack, 220 Conn. 270, 277 (1991).

This waiver rule applies equally to matters raised by way of direct appeal or by collateral attack, such as through a petition for habeas corpus relief, Dukes v. Warden, 161 Conn. 337 (1971), p. 343;  Reed v. Reineke, supra, p. 601;  Cajigas v. Warden, 179 Conn. 78 (1979), p. 81.

A claim of ineffectiveness of counsel at an antecedent proceeding is the kind of defect ordinarily waived by a later guilty plea.   Our Supreme Court has addressed this issue, also.   In Dukes v. Warden, supra pp. 343 and 344, the Court held that the waiver rule applies to claims of ineffective assistance of counsel as well as other types of pre-plea, constitutional deficiencies.   See also McKnight v. Commissioner, supra.

Several federal court cases have arrived at the same conclusions.   In Siers v. Ryan, 773 F.2d 37 (CA3, 1985), cert. den., 490 U.S. 1026.   A federal habeas petitioner attempted to advance a claim that the discontinuity of legal representation resulting from the shifting of his case from one public defender to another during the pre-plea stages of his proceedings denied him the effective assistance of counsel.   The petitioner later pled guilty to a robbery charge.   The U.S. Court of Appeals held that his subsequent guilty plea barred the raising of the claim of ineffectiveness, Id., p. 42.

In U.S. v. Greene, 722 F.Sup. 1221 (E.D.Pa., 1989), a federal defendant pled guilty to mail fraud and later filed a habeas petition attacking this conviction based on a claim that he was deprived of the effective assistance of counsel because his counsel failed to raise search and seizure issues and raise the defense of insanity.   At p. 1222, the U.S. District Court held the petitioner's guilty plea “bars petitioner from challenging the constitutional validity of governmental conduct that occurred before the plea was entered.”

In U.S. v. Winfield, 960 F.2d 970 (CA 11, 1992), a petitioner tried to attack his conviction, following a guilty plea, based on an allegation that his attorney rendered ineffective assistance by failing to file and argue a motion to dismiss based on the expiration of the statute of limitations.   At p. 974, fn. 2, the U.S. Court of Appeals regarded this claim as waived by the guilty plea.

In Wilson v. U.S., 962 F.2 996 (CA 11, 1992), a petitioner entered a guilty plea and later filed a federal habeas petition that his attorney provided ineffective assistance regarding certain preplea issues.   The U.S. District Court refused to conduct a habeas hearing and dismissed the petition.   The U.S. Court of Appeals affirmed the District Court stating, “the court did not err in dismissing [the petitioner's] claim, as it involved pre-plea issues, without conducting an evidentiary hearing,” Id., p. 997.

In Fields v. Maryland, 956 F.2d (1290) (CA 4, 1992), a federal habeas petitioner attempted to overturn his state conviction following his guilty plea.   He claimed, inter alia, that he was denied the assistance of counsel at certain critical stages of the proceedings because his public defender was absent during these proceedings.   The U.S. District Court dismissed the petition.   The U.S. Court of Appeals upheld the dismissal indicating, “[i]t is well-established that a voluntary and intelligent guilty plea forecloses federal collateral review of allegations of antecedent constitutional deprivation.”  Id., p. 1294.   The Court also noted that because the constitutional deprivation asserted, viz, the denial of the assistance of counsel, occurred before the guilty plea and is unrelated to it, the merits of the petitioner's claims need not be reached, Id., p. 1296.

Finally, in Taylor v. Whitley, 933 F.2d 325 (CA.5, 1991), a federal habeas petitioner attacked his state convictions for murder, armed robbery and attempted murder, following his guilty pleas, contending, inter alia, that his attorney rendered ineffective assistance by failing to raise a double jeopardy defense.   The U.S. Court of Appeals affirmed the U.S. District Court decision denying the petition.   The Court of Appeals stated that a “voluntary and intelligent guilty plea does not become vulnerable to habeas corpus review simply because later judicial decisions indicate that the plea rested on a faulty premise or that the legal and factual evaluations of the defendant's counsel were incorrect.”  Id., p. 327.

In that case, the petitioner tried to argue that he would never have pled guilty had he realized or been advised that he had a viable double jeopardy claim.   The Court of Appeals rejected this argument stating, “the critical issue is whether the defendant understood the nature and substance of the charges against him, and not necessarily whether he understood their technical legal effect,” Id., p. 329 (emphasis added).   The Court went on to indicate that the absence of advice regarding the double jeopardy issue “does not affect the voluntary and intelligent nature of his pleas,” Id., p. 331.

The Taylor case, supra, is significant in that it points out that a guilty plea may be voluntarily and intelligently entered without disclosure by counsel, or the court, of all possible consequences of a guilty plea.   What is required is disclosure and advice as to those consequences concerning the nature and substance of the charge to which the plea is made and the trial rights yielded by entering the plea, such as the right to confront and cross examine witnesses.   There is no constitutional right to be advised of other ramifications which a guilty plea might engender, according to the Taylor case, such as the waiver of pre-plea defects.

The federal cases cited above are consistent with and bolster the holding of Duke v. Warden, supra, that a later guilty plea waives claims of ineffectiveness of counsel at earlier proceedings unrelated to taking of the plea.

Consequently, the petitioner has waived any claims of deficient representation by Attorney Teitell relating to activities antecedent to the entry of those guilty pleas, viz, failure to pursue an insanity defense on behalf of the petitioner adequately and the refusal to raise the issue of whether the petitioner was properly advised of his rights when he was arraigned.   The remaining allegation of defective assistance pertains to Attorney Teitell's performance surrounding the guilty pleas.

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, Id., 151.

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 that 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, 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, 144 Conn.App. 461 (2013).

First, there is no requirement that a criminal defendant be advised as to the nuances of the Alford plea, as those nuances form the doctrine first enunciated in North Carolina v. Alford, 400 U.S. 25 (1970), Tyson v. Warden, 24 Conn.App. 729, 734–35 (1991);  State v. Brown, 19 Conn.App. 640–45 (1989).   The Alford decision recognized that it was constitutional for an accused to plead guilty to an offense while simultaneously maintaining innocence, Id., 31.

The validity of a guilty plea in such cases does not depend on the defendant or defense counsel expressly invoking the doctrine by name.   After all, that is what the United States Supreme Court determined in North Carolina v. Alford, supra, and no party or lower court could have referred to that doctrine which was yet to be announced.   As long as a defendant intelligently and voluntarily chooses to plead guilty, despite denial of guilt, instead of running the risks of conviction and infliction of available punishment after a trial, the guilty plea passes constitutional muster.  “[A] defendant may plead guilty while protesting innocence when he makes a conscious choice to plead simply to avoid the expenses or vicissitudes of trial,” United States v. Vonn, 533 U.S. 55, 69 fn. 8 (2002).

Also, in this case, despite the petitioner's habeas testimony, the court finds that the petitioner failed to prove, by a preponderance of the evidence, that more complete knowledge about some aspect of his Alford plea would have reversed his decision to plead guilty rather than have his fate determined at a trial.   If it is easier to dispose of the claim on the ground of insufficient prejudice, the habeas court need not address the question of counsel's performance, Pelletier v. Warden, 32 Conn.App. 38 (1993), p. 46.   Because the court concludes that an examination of the prejudice component of the Strickland test is dispositive, the court proceeds to address that issue directly.   Fortunately, in this particular case, the court need not resolve the dilemma posed by the inconsistent holdings of the Copas and Carraway cases because the court determines that the petitioner has failed to prove, by a preponderance of the evidence, that he would have rejected the plea offer and proceeded to trial instead.

Attorney Teitell testified that she thoroughly explained to the petitioner, before entering his pleas, the nature and elements of the crimes and the potential punishment attendant to each crime.   She sent copies of the pertinent statutes to the petitioner as well.   The court finds her testimony credible.   During his plea canvass the petitioner acknowledged that his lawyer had conveyed this information to him to his satisfaction.   The court determines that the petitioner has failed to prove that Attorney Teitell provided substandard representation, as he alleged, with respect to this information.

The final specification of ineffective assistance relating to the guilty pleas concerns Attorney Teitell's advice as to the petitioner's risk of being found to be a persistent offender if he elected to proceed to trial.   At the time of his pleas, petitioner had accumulated twenty-two criminal convictions, including, convictions for burglary, third degree, larceny, and assaulting a police officer in violation of Connecticut General Statutes § 53a–167c, a class C felony.   Parenthetically, the petitioner claims that the assault conviction was overturned on appeal, but he is incorrect.   An interfering count was ordered merged into the assault of a police officer count, and the assault conviction was affirmed, State v. Mincewicz, 64 Conn.App. 687 (2001), cert. denied, 258 Conn. 924 (2001).

The petitioner contends that Attorney Teitell misled him by indicating that his record would support a determination that he was a persistent dangerous felony offender under Connecticut General Statutes § 53a–40(a).   His criminal history fails to satisfy all the criteria for that determination.   However, his criminal record does indicate that, if convicted of the assault second count which he was facing, he would have been exposed to a determination that he was a persistent serious felony offender under § 53a–40(c).  By virtue of the sentence enhancement provision set forth in § 53a–40(j), the petitioner was vulnerable to a maximum prison sentence of twenty years for the assault second degree count which would raise his total effective maximum sentence to over fifty years, including four years and nine months owed on the violation of probation file.

The petitioner avows that, but for his misunderstanding, purportedly induced by Attorney Teitell, that he might have been found to be a persistent dangerous felony offender, he would have rejected the plea offer and gone to trial.   The court disbelieves the petitioner on this point.   As noted above, the petitioner was vulnerable to adjudication as a persistent serious felony offender, which designation entailed the possibility of a sentence to imprisonment for over fifty years.   The court finds, based on all the evidence and credible testimony before it, that the petitioner would have accepted the plea offer despite his purported misunderstanding.   Therefore, the petitioner has failed to satisfy his burden of proving the prejudice component of the Strickland–Hill test.

For these reasons, the amended petition for habeas corpus relief is denied as to the first and third counts.

Sferrazza, S.J.

Sferrazza, Samuel J., S.J.