Peterson v. Commissioner of Correction
Peterson v. Commissioner of Correction
Opinion of the Court
Opinion
In this certified appeal from the judgment denying a petition for a writ of habeas corpus, the petitioner, Stewart Peterson, claims that the court: (1) applied an improper legal standard in assessing the effectiveness of his trial counsel regarding the duty to adequately explain a plea offer from the state; (2) incorrectly assessed the effectiveness of his trial counsel regarding the duty to secure pretrial detention credit with respect to other charges then pending against the petitioner; and (3) improperly decided facts before the close of evidence.
The habeas court’s memorandum of decision contains a helpful recitation of the relevant factual and procedural background of this habeas matter. The court found that “ [t]he petitioner was the defendant in a criminal case in the judicial district of Danbury under docket number CR-06-0125329 in which he was charged with criminal possession of a weapon in violation of General
“About one month later, while out on bond on the weapons and narcotics charges, the petitioner was again arrested and in docket number CR-06-0125803 was charged with two counts of possession of narcotics in violation of General Statutes § 21a-279a, sale of illegal drugs in violation of General Statutes § 21a-278 (b), possession of drug paraphernalia in violation of General Statutes § 21a-267 (a), and violation of traffic control signals in violation of General Statutes § 14-299. . . . The petitioner was represented in both matters by attorney Joseph Dimyan. . . .
“On August 2, 2006, the prosecutor made the petitioner an offer that would have disposed of both cases with a total effective sentence of seven years suspended after three, with probation following. The petitioner was given until September 20, 2006, to consider the offer. The petitioner rejected the offer and the cases were placed on the firm jury docket on September 27, 2006. . . .
“On October 23, [2006] while awaiting trial, the petitioner was again arrested and in docket number CR-06-0127604 he was charged with two counts of possession of narcotics in violation of ... § 21a-279 (a), possession of drug paraphernalia in violation of ... § 2 la-267 (a), sale of illegal drugs in violation of . . . § 2 la-278 (b), possession of a controlled substance in violation of ... § 21a-279 (c), and operating [a motor vehicle while his license was] under suspension in violation of General Statutes § 12-215. . . .
“On January 17, 2007, the trial court, Thim, J., sentenced the petitioner to five years to serve on each charge to run consecutively with each other, for a total effective sentence of ten years to serve. . . .
“Also on January 17, 2007, the petitioner [pleaded] guilty and was sentenced on both of his remaining criminal files. In CR-06-0125803, the petitioner pleaded guilty to one count of possession of narcotics and the trial court, Mintz, J., sentenced him to seven years to be served concurrently with the sentenced imposed in CR-06-0125329. In CR-06-0127604, the petitioner pleaded guilty to one count of possession of narcotics and was sentenced to three years, to be served consecutively to the sentence he received in CR-06-0125803 and concurrently to the sentence he received in CR-06-0125329, for a total effective sentence of ten years concurrent with the ten year sentence imposed after trial in CR-06-0125329.”
On February 3, 2011, the petitioner filed an amended petition for a writ of habeas corpus, in which he alleged that he had been deprived of his constitutional right to the effective assistance of counsel in the underlying criminal proceedings, on the ground that Dimyan had failed to advise him adequately in regard to the state’s plea offer in docket numbers CR-06-0125329 and CR-06-0125803. He also alleged that Dimyan had been ineffective by failing to ask the court to set bond on the files on which he was arrested while already in custody, thus depriving him of the benefit of pretrial detention credits on the later charged files to which he subsequently pleaded guilty. The trial of this habeas matter
Opinions from the United States Supreme Court and our Supreme Court guide our analytical path. “When reviewing the decision of a habeas court, the facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . The issue, however, of [w]hether the representation [that] a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. Strickland v. Washington, [466 U.S. 668, 698, 104 S. Ct. 2062, 80 L. Ed. 2d 674 (1984)]. As such, that question requires plenary review by this court unfettered by the clearly erroneous standard. . . . Under the Strickland test, when a petitioner alleges ineffective assistance of counsel, he must establish that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance. . . . Furthermore, because a successful petitioner must satisfy both prongs of the Strickland test, failure to satisfy either prong is fatal to a habeas petition. . . .
“To satisfy the first prong, that his counsel’s performance was deficient, the petitioner must establish that his counsel made errors so serious that [counsel] was not functioning as the counsel guaranteed the [petitioner] by the Sixth Amendment. . . . The petitioner must thus show that counsel’s representation fell below an objective standard of reasonableness considering all of the circumstances. ... [A] court must indulge a strong presumption that counsel’s conduct falls within
“To determine whether trial counsel’s performance fell below an objective standard of reasonableness and whether the petitioner was therefore prejudiced, we must consider the nature of the underlying claim.” Id. Although there had been some debate about whether the constitutional right to the effective assistance of counsel applies to the rejection of a plea offer by the government, it is now well settled that a criminal defendant has the right to the effective assistance of counsel in conjunction with the acceptance or rejection of a plea offer. See Missouri v. Frye, U.S. , 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012) (establishing right to effective assistance leading to rejection of plea offer); Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985) (establishing right to effective assistance leading to acceptance of plea offer).
Although affirming a defendant’s constitutional right to the effective assistance of counsel at the plea negotiations stage of criminal proceedings, our courts have nevertheless been reluctant to elaborate on attorney behaviors that may or may not constitute ineffectiveness. In Ebron v. Commissioner of Correction, 120 Conn. App. 560, 572, 992 A.2d 1200 (2010), rev’d on other grounds, 307 Conn. 342, 53 A.3d 983 (2012), this court observed: “[P]lea bargaining is an integral component of the criminal justice system and essential to the expeditious and fair administration of our courts. . . . Commentators have estimated that between 80 and 90
As to the parameters of counsel's advice to a defendant, this court, in 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), commented: “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. ... 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.” (Citation omitted; internal quotation marks omitted.)
I
The petitioner first claims that in assessing his claims regarding Dimyan’s failure to advise him adequately in conjunction with the state’s plea offer, the court utilized an improper standard.
At the outset, we note that the petitioner testified that Dimyan had explained the state’s offer to him. He protested, however, when asked if Dimyan had told him what his chances of winning at trial might be. The court observed that when asked, the petitioner stated: “ ‘Not to the fullest extent, no.’ ” The court noted, as well, that the petitioner claimed that Dimyan did not discuss the strength or weakness of the state’s case or go over any of the state’s evidence against him. The court further noted: “Attorney Dimyan, on the other hand, testified that the state proposed the offer of seven years, suspended after three, with five years of probation after the petitioner was dropped by an alternative incarceration program for being noncompliant. Attorney Dimyan stated that he immediately discussed the offer with the petitioner, adding: ‘And, then I continually discussed it
In assessing this conflicting evidence, the court concluded that the petitioner’s claims were “simply not credible. The court credits Attorney Dimyan’s testimony that he expressed his concern that the petitioner could not realistically prevail at trial on all of the charges against him, and that he did everything short of ‘strong-arming’ the petitioner into accepting the state’s offer.” As we have often said, it is uniquely the function of the trial court, and not a court on review, to assess the credibility of witnesses. Here, although the court may have focused on Dimyan’s persuasive role in regard to plea negotiations, the court credited, as well, testimony that Dimyan explained the proposed plea bargain to the petitioner and the great likelihood that the petitioner could not defeat all the charges then pending against him. We agree with the court that Dimyan’s advice to the petitioner in regard to the state’s offer
II
The petitioner makes the second claim that Dimyan’s failure to secure a court order requiring the petitioner to post bond in the two files arising after he already was in custody caused him to lose presentence confinement credit on the two last charged files. During the habeas trial, Dimyan testified that he was aware of this issue during his representation of the petitioner and he utilized the petitioner’s custody and bond status in his conversations with the prosecutor in negotiating a plea agreement regarding the latter charges. In response to this claim, the court found: “Attorney Dimyan’s efforts to use the jail credit as a bargaining chip during the plea negotiations falls within the wide range of reasonable professional assistance and . . . the petitioner has failed to show that Attorney Dimyan’s actions were anything other than sound trial strategy.” We find no fault with the court’s assessment of this claim.
m
Finally, the petitioner claims that the habeas court’s judgment must be reversed because the court made a
The following additional facts are relevant to this claim. One of the petitioner’s claims regarding Dimyan’s effectiveness was that he did not adequately explain to him the law regarding the possession of a weapon in a motor vehicle, and, thus, the petitioner was not able to make an informed decision as to whether to accept the state’s offer or to proceed to trial. During the habeas hearing, the petitioner’s habeas counsel asked Dimyan, on cross-examination, whether he had explained the doctrine of constructive possession to the petitioner. Dimyan responded that, although he could not recall the specific content of the conversation, he had discussed the doctrine in laymen’s terms with the petitioner. The petitioner’s counsel then asked Dimyan, “[n]ow at [the criminal] trial you argued to the jury about the doctrine of [nonexclusive possession].” The state objected to the question on the basis of relevance. The petitioner’s counsel stated: “This goes to Mr. Dim-yan’s legal understanding of the doctrine and whether he explained it.” The court responded: “Well, let’s get to part two rather than go through all of part one. We understand he understands his legal doctrine.” As pointed out by the respondent, the commissioner of correction, in the appellate brief, the petitioner’s counsel did not object to the court’s comment. Rather, in response to further questioning by the petitioner’s counsel, Dimyan explained his understanding of the doctrine but could not recall whether he had argued the issue of nonexclusive possession to the jury in the underlying criminal trial.
On the basis of the court’s remark during this colloquy, the petitioner argues that the court acted improperly in determining a fact before the conclusion of trial. Whether such conduct, if it occurred, would be fatal to a fair trial is a question we need not answer in this
The judgment is affirmed.
In this opinion the other judges concurred.
The petitioner claims, as well, that the habeas trial evidence irrefutably demonstrates that his trial counsel was ineffective. Our response to this claim is included in our treatment of the petitioner’s claim regarding the standard applied by the court in assessing his habeas claim.
As part of the petitioner’s claim that the habeas court applied the wrong standard in determining whether Dimyan’s performance was deficient, he also argues the proper remedy where a petitioner proves that his counsel
Reference
- Full Case Name
- STEWART PETERSON v. COMMISSIONER OF CORRECTION
- Cited By
- 6 cases
- Status
- Published