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Sanders v. Commissioner of Correction

Court of Appeals of Connecticut

December 20, 2016

LEON SANDERS
v.
COMMISSIONER OF CORRECTION

          Argued September 8, 2016

         Appeal from Superior Court, judicial district of Tolland, Fuger, J.

          Deborah G. Stevenson, assigned counsel, for the appellant (petitioner).

          Kathryn W. Bare, assistant state's attorney, with whom, on the brief, were Mary M. Galvin, former state's attorney, and Courtney M. Chaplin, deputy assistant state's attorney, for the appellee (respondent).

          DiPentima, C. J., and Sheldon and Schaller, Js.

          OPINION

          DiPENTIMA, C. J.

         The petitioner, Leon Sanders, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his third postconviction petition for a writ of habeas corpus challenging his conviction on charges of assault in the first degree and being a persistent dangerous felony offender. On appeal, the petitioner claims that the habeas court (1) abused its discretion in denying his petition for certification to appeal and (2) improperly denied his petition for a writ of habeas corpus in which he claimed that counsel in both his underlying criminal prosecution and his first postconviction habeas corpus proceeding rendered ineffective assistance. Because the petitioner did not demonstrate that the habeas court abused its discretion in denying the petition for certification to appeal, we dismiss the appeal.

         The following facts and procedural history are relevant to our decision. The petitioner was charged with two counts of assault in the first degree and with being a persistent dangerous felony offender. These charges stemmed from an incident in Ansonia on May 23, 2001, in which Kente Douglas was shot multiple times in the back. ‘‘At the time of the shooting, Douglas was reaching through the back door of a parked automobile to remove a child's car seat. Jackie Garcia, Douglas' girlfriend, was standing near the automobile with the couple's four year old daughter in her arms. An automobile drew up beside Douglas, and the [petitioner] fired a gun at Douglas through the passenger side window. Douglas fell to the ground, and the [petitioner] continued to fire gunshots at him until the automobile left the area. During the shooting, Garcia went inside with her child. After the [petitioner] left, she returned to the street with a cordless telephone. She dialed 911, reported to the operator that her boyfriend had been shot and named the [petitioner] as the shooter. When the police arrived, an officer spoke with Garcia, who told him that the [petitioner] had pulled up in a car and shot Douglas five or six times. A police detective spoke with Douglas, who also stated that the [petitioner] had shot him. Later, as Douglas was transported in an ambulance to a hospital, he told another police officer that the [petitioner] had shot him. In June, 2001, the [petitioner] was arrested and charged. Following the jury trial, at which he was convicted of two counts of assault, the [petitioner] was tried to the court on the part B information in which he was accused of being a persistent dangerous felony offender and was convicted on that charge as well. Thereafter, the court imposed a sentence of forty years imprisonment.'' State v. Sanders, 86 Conn.App. 757, 759, 862 A.2d 857 (2005). On the petitioner's appeal from his conviction, this court affirmed the trial court's judgment. Id.

         Following his conviction, the petitioner brought several petitions for writs of habeas corpus. At issue in the present appeal is the petitioner's third such petition, which was filed on December 12, 2012, and amended for a fourth time on September 25, 2014 (operative petition).[1] The petitioner set forth three separate claims. In count one, the petitioner alleged that his first habeas counsel, Sebastian DeSantis, ‘‘was ineffective in failing to allege in the prior habeas petition a claim of ineffective assistance of [his criminal defense counsel, Robert Berke] for his failure to properly advise him of the state's offer of eight years incarceration on a guilty plea, and had he been properly advised, he would not have rejected it.'' In count two, the petitioner alleged that his state and federal rights to due process of law were violated because Berke had not properly advised him whether to accept or reject the state's pretrial offer of eight years incarceration on a guilty plea. In count three, the petitioner alleged actual innocence, but he withdrew that claim prior to trial.

         At the trial on December 2, 2014, the petitioner presented evidence describing the state's plea offer. Specifically, the petitioner submitted the transcript from the first habeas trial, which was held on October 2, 2008, when he had testified that the state's plea offer was for eight years with the right to argue for less. The petitioner repeated this testimony at the proceeding on December 2, 2014. Berke, however, testified that there was a plea offer extended by the state, but he could not remember the exact terms of the plea offer. Berke further testified that he did not recall the alleged plea offer of eight years imprisonment. In terms of how he advised the petitioner regarding the state's plea offer, Berke testified that although he could not recall any specific discussion with the petitioner, he typically presents his clients with ‘‘the positive [and] the negatives of going to trial-the risks of trial [and] the maximum exposure. [He does not] present [his] opinion on whether they should take an offer or not. . . . [T]hat was their decision and not [his].''

         Following the trial, the court, Fuger, J., denied the operative petition in an oral decision in which it concluded that Berke and DeSantis had provided the petitioner with effective assistance of counsel.[2] With respect to the first count, the court determined that it could not ‘‘find any deficient performance by [DeSantis] in his representation of [the petitioner] at the first habeas trial'' and, therefore, it denied the first count of the petition. In rejecting the claim that DeSantis rendered ineffective assistance for failing to allege in the first habeas action a claim that Berke's performance was ineffective for inadequately advising the petitioner regarding the state's plea offer, the court made several findings. It expressly credited the testimony of DeSantis that the petitioner did not raise any concerns to him regarding Berke's representation in connection with the plea offer, and that the petitioner made it clear to DeSantis that he wanted to go to trial to prove his innocence. The court also specifically found, in accordance with DeSantis' testimony, that in order to determine which issues to raise in the habeas petition, he reviewed Berke's file, examined the criminal trial transcripts and files, conversed with the petitioner, hired an investigator, reviewed the relevant police reports and reviewed the petition with the petitioner before he filed it.In drafting the habeas petition, DeSantis testified that he tried to be over in clusive in order to preserve issues for future litigation, and his typical practice was to include a claim in the petition if the petitioner was adamant about including it, unless it was frivolous. In addition, DeSantis agreed with counsel for the respondent, the Commissioner of Correction, that the first habeas court, Nazzaro, J., ‘‘found that it was clear that the petitioner wanted to go to trial and to prove his innocence rather than take a plea offer . . . .''

         As to the petitioner's second count, the court determined that Berke's performance in the petitioner's underlying criminal proceedings was not deficient. With respect to this conclusion, the court explained that the petitioner ‘‘rejected a plea bargain that was apparently eight years with the right to argue for a lower sentence. [The petitioner] went to trial and received, after being found guilty by the jury, a sentence of forty years of confinement.'' (Emphasis added.) The court expressly noted that ‘‘Berke did convey and discuss the plea bargains with [the petitioner]. The record is crystal clear that [the petitioner] protested his innocence and always asserted that he wished to proceed to trial. The court is convinced based upon the testimony of [Berke], the testimony at the first habeas trial, that [Berke] did in fact adequately explain the pretrial offer, discuss the case, discuss the maximum punishments, discuss the pros and cons of pleading guilty or not guilty, but left, as he should have, the final decision as to whether to accept or reject such offer to [the petitioner].'' It further found Berke's representation of the petitioner to be ‘‘sufficiently within that band of representation that will pass constitutional muster.''

         The court then explained that the petitioner had the burden of proving that ‘‘it was reasonably probable that a court, a judge would have accepted the [state's alleged] eight year [plea] offer in this case.'' The court proceeded to explain that it could not ‘‘make the finding that the petitioner [established that] it [was] reasonably probable that [the trial judge] would have accepted the eight year offer, the key word being probable.'' With respect to this finding, the court highlighted: the petitioner's prior conviction of manslaughter, for which the petitioner had served an eleven year prison sentence; that the petitioner had been arrested in connection with a shooting incident soon after he was released after serving his sentence for his manslaughter conviction; and that the petitioner had other convictions for crimes involving firearms. On the basis of the evidence before it, the court concluded that the petitioner had not met his burden of proving by a ‘‘preponderance of the evidence that it [was] reasonably probable that a court would have accepted'' the state's eight year plea offer. As a result of this finding, the court denied the operative petition claiming ineffective assistance by Berke and DeSantis. Subsequently, the petitioner filed a petition for certification to appeal. In that petition, the petitioner stated that the grounds for appeal are: ‘‘Whether [the] habeas court erred when it found that [Berke] was not ineffective when he discussed the strengths [and] weaknesses of the state's case but did not advise the petitioner whether he should accept or reject the state's plea offer.''[3] On December 4, 2014, the court denied the petition for certification to appeal. This appeal followed.

         The petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal because it improperly denied his claims of ineffective assistance of counsel with respect to Berke and DeSantis. ‘‘Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, [the petitioner] must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the merits.'' (Internal quotation marks omitted.) Melendez v. Commissioner of Correction, 151 Conn.App. 351, 357-58, 95 A.3d 551, cert. denied, 314 Conn. 914, 100 A.3d 405 (2014). To prove that the denial of his petition for certification to appeal constituted an abuse of discretion, ‘‘the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] 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.'' (Internal quotation marks omitted.) Moye v. Commissioner of Correction, 168 Conn.App. 207, 214, 145 A.3d 362 (2016).

         ‘‘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. In other words, we review the petitioner's substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria . . . adopted by [our Supreme Court] for determining the propriety of the habeas court's denial of the petition for certification.'' (Internal quotation marks omitted.) Bozelko v. Commissioner of Correction, 162 Conn.App. 716, 721, 133 A.3d 185, cert. denied, 320 Conn. 926, 133 A.3d 458 (2016).

         Here, the petitioner's underlying claims are that the habeas court improperly concluded that (1) Berke provided effective assistance of counsel and (2) DeSantis provided effective assistance of counsel. After determining the merits of these underlying claims, we conclude that the court did not abuse its discretion in denying the petition for certification to appeal.

         Our standard of review of a habeas court's judgment on ineffective assistance of counsel claims is well settled. ‘‘The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . The application of the habeas court's factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review.'' (Internal quotation marks omitted.) Horn v. Commissioner of Correction, 321 Conn. 767, 775, 138 A.3d 908 (2016). Therefore, ‘‘our review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary.'' (Internal quotation marks omitted.) Kearney v. Commissioner of Correction, 113 Conn.App. 223, 228, 965 A.2d 608 (2009).

         It is well established that ‘‘[a] criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings . . . . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. . . . As enunciated in Strickland v. Washington, [466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)], this court has stated: It is axiomatic that the right to counsel is the right 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.'' (Citation omitted; internal quotation marks omitted.) Horn v. Commissioner of Correction, supra, 321 Conn. 775. ‘‘To satisfy the second prong of Strickland, that his counsel's deficient performance prejudiced his defense, the petitioner must establish that, as a result of his trial counsel's deficient performance, there remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal. . . .

         The second prong is thus satisfied if the petitioner can demonstrate that there is a reasonable probability that, but for that ineffectiveness, the outcome would have been different.'' (Internal quotation marks omitted.) Id., 776. ‘‘An ineffective assistance of counsel claim will succeed only if both prongs [of Strickland] are satisfied.'' (Internal quotation marks omitted.) Bozelko v. Commissioner of Correction, supra, 162 Conn.App. 722-23. The court, however, ‘‘may decide against a petitioner on either prong, whichever is easier.'' Lewis v. Commissioner of Correction, 165 Conn.App. 441, 451, 139 A.3d 759, cert. denied, 322 Conn. 901, 138 A.3d 931 (2016).

         I

         The petitioner first claims that the habeas court abused its discretion in denying his petition for certification to appeal because it improperly denied his claim of ineffective assistance of counsel with respect to Berke. As described in the preceding paragraph, to determine whether the habeas court abused its discretion in denying the petition for certification to appeal, this court will look at the underlying merits of the petitioner's claims. See Bozelko v. Commissioner of Correction, supra, 162 Conn.App. 721. Specifically, the petitioner contends that the habeas court improperly concluded that (1) Berke's performance concerning the state's plea offer was neither deficient nor prejudicial and (2) Berke's failure to advise the petitioner on accessorial liability did not constitute ineffective assistance. We will address each claim in turn.

         A

         Turning to the petitioner's first claim, we agree with the petitioner that Berke's performance pertaining to the state's plea offer was deficient; however, we are not persuaded that the petitioner established that he was prejudiced by the deficient performance. As ‘‘ ‘[a]n ineffective assistance of counsel claim will succeed only if both prongs [of Strickland] are satisfied' ''; id., 722-23; we conclude that the petitioner failed to meet his burden of establishing his ineffective assistance of counsel claim with respect to Berke's performance pertaining to the state's plea offer. Because the petitioner failed to establish that he was prejudiced by Berke's deficient performance, he cannot demonstrate that the issues pertaining to this claim are debatable among jurists of reason, that a court could resolve those issues differently or that the questions raised deserve encouragement to proceed further. Therefore, as we discuss subsequently in this opinion, the petitioner has failed to demonstrate that the court abused its discretion in denying his petition for certification to appeal as to this claim.

         We begin by setting forth the governing legal principles in cases involving claims of ineffective assistance of counsel in the plea bargain context. As previously noted, under the Strickland test, ‘‘[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.) Mahon v. Commissioner of Correction, 157 Conn.App. 246, 253, 116 A.3d 331, cert. denied, 317 Conn. 917, 117 A.3d 855 (2015).

         ‘‘Pretrial negotiations implicating the decision of whether to plead guilty is a critical stage in criminal proceedings . . . .'' (Internal quotation marks omitted.) Id. ‘‘[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 percent of criminal cases in Connecticut result in guilty pleas, the majority of which are the product of plea bargains. . . . Thus, almost every criminal defendant is faced with the crucial decision of whether to plead guilty or proceed to trial. Although this decision is ultimately made by the defendant, the defendant's attorney must make an informed evaluation of the options and determine which alternative will offer the defendant the most favorable outcome. A defendant relies heavily upon counsel's independent evaluation of the charges and defenses, applicable law, the evidence and the risks and probable outcome of a trial.'' (Emphasis in ...


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