Moore v. Comm'r of Corr., 199 A.3d 594, 186 Conn. App. 254 (2018)

Nov. 27, 2018 · Connecticut Appellate Court · AC 40112
199 A.3d 594, 186 Conn. App. 254

Joseph MOORE
v.
COMMISSIONER OF CORRECTION

AC 40112

Appellate Court of Connecticut.

Argued September 14, 2018
Officially released November 27, 2018

*596Michael W. Brown, West Hartford, for the appellant (petitioner).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Angela Macchiarulo, senior assistant state's attorney, for the appellee (respondent).

Lavine, Keller and Elgo, Js.

KELLER, J.

*255The petitioner, Joseph Moore, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the habeas court (1) abused its discretion in denying his petition for certification to appeal and (2) improperly rejected his claim that his trial counsel had rendered ineffective assistance. We *256conclude that the court did not abuse its discretion in denying the petition for certification to appeal, and, accordingly, dismiss the petitioner's appeal.

The following facts and procedural history are relevant to our resolution of the petitioner's claims. Following a trial, a jury found the petitioner guilty of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and commission of a class B felony with a firearm in violation of General Statutes § 53-202k. The petitioner then pleaded guilty, in response *597to a part B information, that the aforementioned offenses were committed while on release in violation of General Statutes § 53a-40b. The petitioner also pleaded guilty to a second part B information charging him with being a persistent felony offender in violation of General Statutes § 53a-40 (f). The trial court sentenced the petitioner to a total effective term of thirty-four years incarceration.

On direct appeal from the petitioner's underlying conviction, this court set forth the following facts that the jury reasonably could have found. "At approximately 1 p.m. on July 13, 2009, the [petitioner] entered the New Alliance Bank in Columbia wearing a white tank top and dark sweatpants. Branch manager Penny Ritchie and tellers Maria DePietro and Michelle LaLiberty, who were working at the bank that day, observed the [petitioner] approach the check writer station. The [petitioner] then asked another patron, David Woodward, where the withdrawal slips were located, at which point the [petitioner] took a slip from the station and began to write on it. Photographs from the bank's security cameras introduced into evidence depict the [petitioner] writing on a piece of paper at the check writer station and then approaching the teller station with the piece of paper in his hand.

"The [petitioner] approached Ritchie and handed her a deposit slip that read, '[g]ive cash. I have gun.' When *257Ritchie explained that she was not a teller, the [petitioner] ordered her to '[g]ive me the cash. Give it now.' Ritchie then slid the deposit slip to DePietro, who unlocked her teller drawer. As she did, the [petitioner] demanded, '[h]urry up, hurry up' and reached over the counter. DePietro then handed the [petitioner] $3500 in cash.

"The [petitioner] immediately exited the bank and Woodward followed. As Ritchie locked the bank's doors and DiPietro called 911, LaLiberty closed the bank's drive-through window. As she did, she saw the [petitioner] walking at the rear of the bank to a grassy strip between the drive-through lane and an adjacent firehouse. LaLiberty wrote down a description of the [petitioner] at that time. Approximately six hours later, the Connecticut state police apprehended the [petitioner] in a grassy area near Route 66 in Columbia. The [petitioner] subsequently reviewed and executed a waiver of Miranda1 rights form and agreed to speak with Detective Derek Kasperowski. The [petitioner] then admitted to robbing the bank and stated that he remembered 'smoking crack before going into the bank, going to the bank teller and telling her to give him money.' Although no firearm was found on the [petitioner's] person or the surrounding area, the $3500 in cash was recovered." (Internal quotation marks omitted.) State v. Moore , 141 Conn. App. 814, 816-17, 64 A.3d 787, cert. denied, 309 Conn. 908, 68 A.3d 663 (2013). This court affirmed the petitioner's conviction. Id., at 825, 64 A.3d 787.

On May 16, 2014, the petitioner, as a self-represented party, filed an application for a writ of habeas corpus. After obtaining counsel, he filed an amended petition on April 28, 2016. He alleged in relevant part that his constitutional right to effective assistance of counsel *258was violated, arguing that his "trial counsel's performance was deficient because he failed to adequately counsel the petitioner about the advisability of accepting the plea offer" and that there was a "reasonable probability that-but for trial counsel's deficient performance-the petitioner would have accepted the plea offer and the court *598would have imposed a more favorable sentence than the petitioner received."

At the habeas trial on September 15, 2016, the habeas court heard testimony from Matthew Gedansky, the state's attorney in the petitioner's criminal case, Doug-las Ovian, the petitioner's trial counsel, and the petitioner. In particular, the petitioner testified that he admitted from the beginning that he robbed the bank, but he believed that he was only guilty of robbery in the third degree because he only had handed the bank teller a note and never hurt anyone.2 There was testimony that three plea offers were made to the petitioner: an offer for ten years to serve with five years of special parole; an offer for ten years to serve with two years of special parole; and an offer made at a judicial pretrial conference with Sullivan, J. , offering the petitioner fifteen years to serve if he pleaded guilty to one count of robbery in the first degree.3 Ovian testified that his *259notes indicated that he advised the petitioner to accept the offers and that he would never have told the petitioner to take this case to trial. In addition, Gedansky testified that he recalled Ovian telling him that Ovian had advised the petitioner to take the offer of ten years to serve with two years special parole. The petitioner testified that he rejected these offers because he had faith the state might present him with a more favorable offer, and that he believed he deserved only five years of imprisonment. There also was differing testimony between Ovian and the petitioner with respect to what Ovian advised as to the potential maximum sentence the petitioner faced if he was found guilty of all the charges, and whether he advised the petitioner of the potential maximum sentence he faced if he prevailed on a robbery in the third degree theory at trial.4 *599In a memorandum of decision filed January 10, 2017, the habeas court denied the amended petition for a writ *260of habeas corpus, finding that the petitioner had failed to prove deficient performance or prejudice. In particular, the habeas court found that "Ovian had many discussions with the petitioner throughout the course of his representation," and that Ovian "went over the state's evidence with [the petitioner] and he advised the petitioner to take each of the deals as they were offered given the circumstances." Additionally, the habeas court found that Ovian "informed the petitioner that he was facing a maximum exposure of forty-eight and one-half years if convicted of robbery in the first degree due to the sentence enhancements the petitioner faced." The habeas court concluded that Ovian relayed the offers to the petitioner, properly explained the state's evidence to him, and adequately warned him of the exposure he could face should he choose to go to trial. On January 17, 2017, the petitioner filed a petition for certification to appeal, which was later denied by the habeas court. This appeal followed.

We begin by setting forth the applicable standard of review and procedural hurdles that the petitioner must overcome in order to obtain appellate review of the merits of a habeas court's denial of the habeas petition following denial of certification to appeal. "In Simms v. Warden , 229 Conn. 178, 187, 640 A.2d 601 (1994), [our Supreme Court] concluded that ... [General Statutes] § 52-470 (b) prevents a reviewing court from hearing the merits of a habeas appeal following the denial of certification to appeal unless the petitioner establishes that the denial of certification constituted an abuse of discretion by the habeas court. In Simms v. Warden , 230 Conn. 608, 615-16, 646 A.2d 126 (1994), [the Supreme Court] incorporated the factors adopted by the United States Supreme Court in Lozada v. Deeds , 498 U.S. 430, 431-32, 111 S.Ct. 860, 112 L.Ed.2d 956 (1991), as the appropriate standard for determining *261whether the habeas court abused its discretion in denying certification to appeal. This standard requires the petitioner to demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.... A petitioner who establishes an abuse of discretion through one of the factors listed above must then demonstrate that the judgment of the habeas court should be reversed on its merits.... In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous." (Internal quotation marks omitted.) Hankerson v. Commissioner of Correction , 150 Conn. App. 362, 366-67, 90 A.3d 368, cert. denied, 314 Conn. 919, 100 A.3d 852 (2014).

On appeal, the petitioner argues that the habeas court improperly rejected his claim that his trial counsel, Ovian, had rendered ineffective assistance.5 In his *600view, although Ovian advised him of the maximum sentence that he faced on the charge of robbery in the first degree, Ovian's performance was deficient for failing to advise him of the maximum sentence he faced if he was successful in proving at trial that he was guilty only of committing the lesser included offense of robbery in the third degree.6 For the reasons set forth in this opinion, we disagree with the petitioner and conclude that *262the habeas court did not abuse its discretion in denying the petition for certification to appeal.

"The sixth amendment to the United States constitution, made applicable to the states through the due process clause of the fourteenth amendment, affords criminal defendants the right to effective assistance of counsel. Davis v. Commissioner of Correction , 319 Conn. 548, 554, 126 A.3d 538 (2015), cert. denied sub nom. Semple v. Davis , --- U.S. ----, 136 S.Ct. 1676, 194 L.Ed.2d 801 (2016) ; see also Thiersaint v. Commissioner of Correction , 316 Conn. 89, 100, 111 A.3d 829 (2015) (criminal defendant constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings). Although a chal-lenge to the facts found by the habeas court is reviewed under the clearly erroneous standard, whether those facts constituted a violation of the petitioner's rights under the sixth amendment is a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case. ... As such, that question requires plenary review by this court *263unfettered by the clearly erroneous standard." (Internal quotation marks omitted.) Duncan v. Commissioner of Correction , 171 Conn. App. 635, 646, 157 A.3d 1169, cert. denied, 325 Conn. 923, 159 A.3d 1172 (2017).

The United States Supreme Court has made clear that the failure to adequately advise a client throughout the plea process can form the basis for a sixth amendment claim of ineffective assistance of counsel, and that such claims should be evaluated under the two-part standard enunciated in Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Hill v. Lockhart , 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). "[I]t is axiomatic that the right to counsel is the *601right to the effective assistance of counsel. ... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong ... the petitioner must demonstrate that his attorney's representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law." (Internal quotation marks omitted.) Silver v. Commissioner of Correction , 180 Conn. App. 592, 597, 184 A.3d 329, cert. denied, 328 Conn. 940, 184 A.3d 759 (2018).

"Prior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered. Determining whether an accused is guilty or innocent of the charges in a complex legal indictment is seldom a simple and easy task for a layman, even though acutely intelligent." Von Moltke v. Gillies , 332 U.S. 708, 721, 68 S.Ct. 316, 92 L.Ed. 309 (1948). "A defense lawyer in a criminal case has the duty to advise his client fully on whether a particular plea to a charge appears to be desirable." (Internal quotation marks *264omitted.) Vazquez v. Commissioner of Correction , 123 Conn. App. 424, 437, 1 A.3d 1242 (2010), cert. denied, 302 Conn. 901, 23 A.3d 1241 (2011), quoting Boria v. Keane , 99 F.3d 492, 496 (2d Cir. 1996), cert. denied, 521 U.S. 1118, 117 S.Ct. 2508, 138 L.Ed.2d 1012 (1997).

"Although the defendant ultimately must decide whether to accept a plea offer or proceed to trial, this critical decision, which in many instances will affect a defendant's liberty, should be made by a represented defendant with the adequate professional assistance, advice, and input of his or her counsel. Counsel should not make the decision for the defendant or in any way pressure the defendant to accept or reject the offer, but counsel should give the defendant his or her professional advice on the best course of action given the facts of the particular case and the potential total sentence exposure." (Emphasis omitted.) Barlow v. Commissioner of Correction , 150 Conn. App. 781, 800, 93 A.3d 165 (2014). "We are mindful that [c]ounsel's conclusion as to how best to advise a client in order to avoid, on the one hand, failing to give advice and, on the other, coercing a plea enjoys a wide range of reasonableness. ... Accordingly, [t]he need for recommendation depends on countless factors, such as the defendant's chances of prevailing at trial, the likely disparity in sentencing after a full trial compared to the guilty plea ... whether [the] defendant has maintained his innocence, and the defendant's comprehension of the various factors that will inform [his] plea decision." (Citation omitted; internal quotation marks omitted.) Sanders v. Commissioner of Correction , 169 Conn. App. 813, 828, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904, 156 A.3d 536 (2017).

The petitioner argues that his trial counsel's performance was deficient for failing to advise him of the maximum sentence he faced if he was successful in proving a theory of defense at trial that amounted to *265conceding that he was guilty only of the lesser included offense of robbery in the third degree.7 Specifically, *602the petitioner argues that although Ovian advised him of the maximum exposure he faced if convicted of robbery in the first degree, Ovian's performance was deficient because he had a duty to further encourage the petitioner to accept the plea offers by advising him that the maximum sentence at trial were he convicted only of robbery in the third degree would be "at least as severe" or exceed the sentences of the plea offers initially made to him. In other words, the petitioner argues that his trial counsel was deficient because he was required, but failed, to adequately address the reasons that the petitioner had for proceeding to trial, rendering him unable to meaningfully weigh his options. We disagree.

In the present case, our review of the record demonstrates that Ovian provided the petitioner with professional advice on the best course of action given the facts of the petitioner's case and also informed him of the potential total sentence to which he was exposed. See Barlow v. Commissioner of Correction , supra, 150 Conn. App. at 800. While the petitioner may prefer that we broaden this duty by requiring trial counsel to advise their clients on the total sentence exposure they face for each and every possible defense scenario, we decline to adopt such a rule.

As the petitioner points out, both parties agree that the evidence against the petitioner was overwhelming *266and that it was highly unlikely that the petitioner could have prevailed with respect to the charge of robbery in the first degree. To be sure, the evidence at trial included, inter alia, still photographs from the video surveillance of the petitioner entering the bank and writing a note, photographs of him approaching the teller station with the piece of paper in hand, the slip containing the petitioner's written demand for money and reference to a gun, testimony of the bank teller explaining that she had written a description of the petitioner on the back of the slip, and evidence that the petitioner was apprehended with the proceeds of the crime on him. In its memorandum of decision, the habeas court found that Ovian had many discussions with the petitioner throughout the course of his representation and discussed the strengths and weaknesses of the state's evidence with him. On the basis of his assessment of the case, Ovian advised the petitioner to accept each of the plea deals offered to him, informing the petitioner that he was facing a maximum sentence of forty-eight and one-half years if he proceeded to trial.

Although the petitioner was apprised of the evidence against him and advised to accept each of the plea deals offered, the record demonstrates that he held strong, subjective, and unrealistic beliefs about his case. For example, the habeas court found that the petitioner believed he should be convicted only of robbery in the third degree because he merely gave the bank teller a note and did not hurt anyone; that he believed that five years was a more reasonable sentence for his offense; that the petitioner, at a judicial pretrial conference, stated, "[s]ir, I apologize, to offend you all but I just want you to know this is not a [r]obbery [first] and I will be going to trial to prove it because I am not copping out to this"; that he believed that the maximum sentence he could receive for robbery in the third degree was five years; and that he rejected plea offers from the *267state because he had faith the state *603might present him with a more favorable offer.8 Despite counsel's advice to the petitioner to accept the plea offers, the petitioner chose to proceed to trial where he attempted to prove that his actions constituted only robbery in the third degree.9

The petitioner acknowledges that he was "fully advised" about the likelihood of being convicted on the robbery in the first degree charge and the maximum potential sentence that he likely faced, but instead, focuses his argument on trial counsel's lack of specific advice on the maximum sentence he could have faced if he had succeeded on the unlikely strategy of proving that he only had committed robbery in the third degree. In doing so, he argues that he was unable to meaningfully weigh his options on whether to proceed to trial without understanding that the maximum sentence at trial on a theory of robbery in the third degree would be "at least as severe" or exceed the sentences of the plea offers initially made to the petitioner. He asserts that his "decision to proceed to trial was influenced highly by trial counsel's flawed advice" to him, characterizing his decision to reject the plea offers and proceed to trial as "irrational and suicidal given the circumstances." The petitioner's argument, however, completely ignores the adequate and accurate advice Ovian did provide him. Ovian's conversations with the petitioner fully apprised him of the reality of his case. Moreover, the court found that Ovian had many discussions with the petitioner throughout the course of his *268representation, where Ovian properly explained the state's evidence to him, relayed the plea offers to him, and informed him that he faced up to forty-eight and a half years incarceration if he proceeded to trial. Given the circumstances, Ovian advised the petitioner that the plea offers from the state were desirable and that he should accept them. See Vazquez v. Commissioner of Correction , supra, 123 Conn. App. at 437.

While the petitioner may now describe his decision to proceed to trial as "suicidal," that decision was his alone to make. See Andrews v. Commissioner of Correction , 155 Conn. App. 548, 554, 110 A.3d 489 ("[c]ounsel should not make the decision for the defendant or in any way pressure the defendant to accept or reject the offer" [internal quotation marks omitted] ), cert. denied, 316 Conn. 911, 112 A.3d 174 (2015). From the beginning, Ovian's advice to him was unequivocal; he made clear that the petitioner should be prepared for a conviction on the charge of robbery in the first degree should he choose to proceed to trial. And, as counsel had warned, the petitioner was in fact convicted of robbery in the first degree and sentenced to thirty-four years incarceration following his trial. Our case law requires that the petitioner be given "adequate professional assistance, advice, and input" from his counsel and be advised "on the best course of action given the facts of [his] case and the potential total sentence exposure." (Emphasis omitted.) Barlow v. Commissioner of Correction , supra, 150 Conn. App. at 800. On the basis of our review of the record, we conclude that he was provided with just that. We cannot say that Ovian's failure to inform the petitioner of the potential total *604sentence exposure he faced if he succeeded on the unlikely theory of proving robbery in the third degree or his decision not to further persuade the petitioner to accept the plea offers constituted deficient performance. It also bears noting that the petitioner has cited no relevant cases to support *269his claim on appeal and presented no evidence at the habeas trial to demonstrate that the prevailing professional norms in Connecticut made it necessary for Ovian to advise the petitioner in the manner he argues. As this court has noted before, trial counsel's decision on "how best to advise a client in order to avoid, on the one hand, failing to give advice and, on the other, coercing a plea enjoys a wide range of reasonableness ...."10 (Internal quotation marks omitted.) Peterson v. Commissioner of Correction , 142 Conn. App. 267, 274, 67 A.3d 293 (2013).

The information and advice provided to the petitioner by trial counsel was adequate for him to make an informed decision as whether to accept the state's plea offers. See Melendez v. Commissioner of Correction , 151 Conn. App. 351, 359, 95 A.3d 551, cert. denied, 314 Conn. 914, 100 A.3d 405 (2014). Although the petitioner claims he was entitled to further explanation about the consequences of proceeding to trial, he has not demonstrated, as required under the first prong of Strickland , that trial counsel's actual explanation and advice fell below an objective standard of reasonableness under prevailing professional norms.11 See Strickland v. Washington , supra, 466 U.S. at 687-88, 104 S.Ct. 2052 ; Heredia v. Commissioner of Correction , 106 Conn. App. 827, 836-37, 943 A.2d 1130, cert. denied, 287 Conn. 918, 951 A.2d 568 (2008).

We, therefore, conclude, after a thorough review of the record, that the petitioner failed to establish that *270the issue he raised is debatable among jurists of reason, that a court could resolve it in a different manner, or that the question he raised is adequate to deserve encouragement to proceed further. Accordingly, we conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.