Superior Court of Connecticut, Judicial District of Tolland, Rockville, Geographic Area 19
MEMORANDUM OF DECISION RE RECONSIDERATION OF REMEDY
Susan Quinn Cobb, J.
On May 15, 2015, this court granted the petitioner's, Jennifer Helmedach, petition for a writ of habeas corpus finding that her trial counsel was ineffective in that he failed to inform her of a ten-year plea offer prior to it being withdrawn by the state, and that had she been informed of the offer, she would have accepted it. The court further found, pursuant to the parties' stipulation, that the trial court, Damiani, J., would have accepted and imposed the plea offer. This court ordered the following remedy: " Having found the issues for the petitioner in this case, the petitioner's conviction in State v. Helmedach, Docket No. NNH CR-04-0226268S, Judicial District of New Haven, is hereby vacated . The case is referred to the trial court for a determination of the appropriate remedy in accordance with Ebron v. Commissioner of Correction, [307 Conn. 342, 53 A.3d 983 (2012), cert. denied, 133 S.Ct. 1726, 185 L.Ed.2d 802 (2013)]." (Emphasis added.)
In reviewing this order in connection with the petitioner's motion to terminate the automatic stay pending appeal, the court, sua sponte, raised the issue as to the correctness of its remedy and in particular, whether it should have " vacated" the petitioner's convictions  or simply referred the matter to the trial court, without vacating the convictions. The court gave the parties the opportunity to brief and argue the issue, which both parties have done.
The petitioner argues that the court's order vacating the petitioner's convictions was the appropriate remedy in this case because the only remedy adequate to cure the constitutional violation is for the petitioner to receive the benefit of the ten-year plea offer, which requires that her convictions for felony murder and robbery be vacated,  and that this court has the discretion to do so. In support of her argument, the petitioner points to the following language in Ebron v. Commissioner: " We emphasize that the approach we outline is specific to this case and is not intended to deprive habeas and trial courts of the flexibility required to exercise their discretion to craft a proper remedy in any given case in light of the principles articulated in Frye and Lafler ." 307 Conn. 342, n.16, 53 A.3d 983.
The respondent argues that this court should not have " vacated" the petitioner's convictions, but in accordance with the Supreme Court's decisions in Ebron v. Commissioner, supra, 307 Conn. 342 and later in H.P.T. v. Commissioner, 310 Conn. 606, 79 A.3d 54 (2013), should have left the remedy, including whether the convictions should be vacated, to the criminal trial court.
The facts of this case and the court's analysis resulting in its conclusions that trial counsel's representation was deficient and the petitioner was prejudiced by that conduct are fully set forth in the court's written memorandum granting the petition. Helmedach v. Warden, Docket No. CV 12-4005008S, judicial district of Tolland (May 15, 2015, Cobb, J.).
To summarize, the petitioner was convicted, after a jury trial of felony murder in violation of General Statutes § 53a-54c, robbery in the first degree in violation of General Statutes § 53a-134(a)(1) and conspiracy to commit robbery in the third degree in violation of General Statutes § § 53a-48 and 53a-136. The trial court sentenced the petitioner to thirty-five years' incarceration. The petitioner appealed her convictions to the Appellate Court, which affirmed them. State v. Helmedach, 125 Conn.App. 125, 8 A.3d 514 (2010), aff'd, 306 Conn. 61, 48 A.3d 664 (2012).
This habeas court found that the petitioner's trial counsel, Richard Reeve's representation of the petitioner was deficient because he failed to relay a plea offer of ten years to the petitioner before it was withdrawn by the prosecutor. This court further found that the petitioner had established prejudice because had trial counsel relayed the ten-year offer to the petitioner in a timely manner, she would have accepted it. The parties stipulated that " Judge Damiani would have accepted the plea resolution and sentenced the petitioner in accordance with the State's final offer." Thus, based on this stipulation and the petitioner's testimony the court found prejudice. This court then ordered the petitioner's convictions " vacated" and referred the case to the criminal trial court in New Haven for a determination of the proper remedy in accordance with the Supreme Court's decision in Ebron v. Commissioner of Correction, supra, 307 Conn. 342.
The only issue of concern with respect to the court's decision, granting the petition, is its order and, in particular, whether it should have vacated the convictions under the circumstances of this case or left that decision to the criminal trial court in fashioning the remedy. On the one hand, because this court found that trial counsel was ineffective in allowing the ten-year pretrial offer to lapse and the parties stipulated that Judge Damiani would have accepted and imposed the state's last offer, " it seems reasonably clear that the appropriate remedy is to impose that sentence. Indeed, it is difficult to imagine on what bases the court could conclude that a more severe sentence would be adequate to cure the prejudice to the petitioner under these circumstances." Ebron v. Commissioner of Correction, supra, 307 Conn. 356-7 (footnote omitted.) In order to fashion this remedy--a ten-year sentence--it is necessary for the felony murder conviction that has a twenty-five-year mandatory minimum sentence to be vacated and for the prosecutor to offer the same or a similar plea offer to the petitioner, involving a lesser charge or charges.
On the other hand, notwithstanding the Supreme Court's dicta in Ebron v. Commissioner, its holding in that case and its subsequent decision in H.P.T. v. Commissioner, supra, 310 Conn. 606, appears to direct habeas courts to leave the remedy to the criminal trial courts, even in cases similar to this one where the remedy of specific performance may be necessary to cure the constitutional deprivation.
To resolve this issue it is necessary to review the recent U.S. Supreme Court decisions involving similar cases and our Supreme Court's decisions in Ebron and H.P.T.
In Missouri v. Frye, 566 U.S. 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), the United States' Supreme Court held that the sixth amendment right to effective assistance of counsel applies to the negotiation and consideration of plea offers that lapse or are rejected, and set forth the standard of prejudice that the petitioner must show resulted from counsel's deficient performance. In that case, defense counsel failed to inform the petitioner of a plea offer and after the offer lapsed, the defendant pleaded guilty, but on more severe terms. As to prejudice the Court held that in addition to proving that there is a reasonable probability that the petitioner would have accepted the earlier plea offer, the petitioner must also show that " the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law." Id. Because the Supreme Court remanded the case on the prejudice prong of the test, it did not reach the issue of what remedy should be imposed in such circumstances.
Lafler v. Cooper, 566 U.S. 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) decided the same day as Missouri v. Frye, involved the rejection of a favorable plea offer as the result of the deficient performance of defense counsel, after a full trial, where the petitioner received a significantly higher sentence, which included mandatory prison time. In Lafler, the U.S. Supreme Court specifically addressed the appropriate remedy that should be applied to these types of cases involving lapsed or rejected plea offers. " Sixth Amendment remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests . . . Thus, a remedy must 'neutralize the taint' of a constitutional violation . . . while at the same time not grant a windfall to the defendant or needlessly squander the considerable resources the State properly invested in the criminal prosecution." Lafler v. Cooper, 566 U.S. (2012).
The Lafler Court explained that the " specific injury" suffered by petitioners who decline a plea offers as a result of ineffective assistance of counsel and then receive a greater sentence comes in a least two forms: (1) where the petitioner would have received a lesser sentence on the same charges that he was convicted of after the trial; or (2) where the petitioner would have pleaded guilty to lesser ...