DARRYL ANDREW BONDS, JR. v. COMMISSIONER OF CORRECTION
AC 46191
Appellate Court of Connecticut
February 6, 2024
Bright, C. J., and Cradle and Schuman, Js.
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Syllabus
The petitioner, who had been convicted of felony murder, robbery in the first degree, and conspiracy to commit robbery in the second degree, sought a writ of habeas corpus, claiming that his trial counsel, S, had provided ineffective assistance during plea negotiations by, among other things, failing to adequately advise him to accept a plea deal and failing to adequately advise him regarding the strength of the state‘s case. The petitioner alleged that, but for his counsel‘s allegedly deficient performance, he would have pleaded guilty and received a more favorable disposition. The habeas court rendered judgment denying the petition, from which the petitioner, on the granting of certification, appealed to this court, claiming, inter alia, that the court incorrectly concluded that he had failed to prove that he was рrejudiced by S‘s deficient performance because there was a reasonable probability that, but for S‘s failure to give specific and appropriate advice, he would have accepted the plea offer. Held that the habeas court‘s determination that the petitioner did not prove that he was prejudiced by S‘s allegedly ineffective assistance was not clearly erroneous: the habeas court found that the petitioner‘s testimony that he would have pleaded guilty instead of proceeding to trial was not credible and therefore concluded that the petitioner did not establish that he would have accepted a plea offer had S advised him any differently about the plea offer or the state‘s evidence, and the court‘s findings regarding whether the petitioner would have accepted the plea offer, which were made solely on the basis of the court‘s credibility determinations, were entitled to deference; moreover, the court did not single out the petitioner‘s testimony with respect to whether he would have accеpted the state‘s plea offer but, rather, rejected his testimony as a whole, the court having heard the petitioner admit on cross-examination at the habeas trial that he had told the sentencing judge six times that he was innocent and that he would not admit to something that he did not do, and, accordingly, the court reasonably could have concluded that a petitioner who maintained his innocence so strongly on a felony murder charge was unlikely to plead guilty to the lesser charge of manslaughter offered by the state; furthermore, regardless of whether the court erred in its conclusion that there was no evidence that the trial court would have accepted the state‘s plea offer, and, although there was no dispute that the plea offer would have involved a conviction and a sentence that was less severe than that which was imposed, the petitioner‘s failure to prove that he would have accepted the plea offer was fatal to his appeal.
Argued December 5, 2023-officially released February 6, 2024
Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland and tried to the court, M. Murphy, J.; judgment denying the petition, from which the petitioner, on the granting of certification, appealed to this court. Affirmed.
Judie Marshall, for the appellant (petitioner).
Danielle Koch, deputy assistant state‘s attorney, with whom, on the brief, were Joseph Valdes, senior assistant state‘s attorney, and Erin Stack, deputy assistant state‘s attorney, for the appellee (respondent).
Opinion
SCHUMAN, J. The petitioner, Darryl Andrew Bonds, Jr., appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly rejectеd his claim of ineffective assistance of trial counsel. We affirm the judgment on the ground that the habeas court properly found that the petitioner did not prove that he was prejudiced by any ineffective assistance.
The following facts and procedural history are relevant to our disposition of this appeal. On November 4, 2009, the petitioner and his friend, Tyrone Tarver, participated in the robbery and shooting of the victim, Denny Alcantara. State v. Bonds, 172 Conn. App. 108, 112-14, 158 A.3d 826, cert. denied, 326 Conn. 907, 163 A.3d 1206 (2017). The suspects took a black leather jacket, gold chain, cell phone, money, and marijuana from the victim, and the victim was shot twice in the stomach. Id., 113. The victim ultimately died of a gunshot wound to the abdomen. Id.
In December, 2010, the petitioner was arrested for this incident pursuant to a warrant. Id., 114. In May, 2014, prior to trial, the state filed a second substitute information charging the petitioner with one count of felony murder in violation of
The petitioner subsequently filed the present habeas action and, in his third amended petition, alleged that his criminal trial counsel, Stephan Seeger, had rendered
The court, M. Murphy, J., held a trial on the habeas petition on May 17 and 26, 2022, at which five witnesses testified: the petitioner; Seeger; Joseph Valdes, the prosecutor at the petitioner‘s criminal trial; Briаn Carlow, an attorney whom the petitioner presented as a legal expert; and Yvania Collazo, the petitioner‘s cousin, who testified at the petitioner‘s criminal trial. The parties also submitted documentary evidence to the court, including an email exchange between Seeger and Valdes that took place after Tarver‘s trial but more than six months prior to the petitioner‘s criminal trial, which described aspects of the plea negotiations.
On November 17, 2022, the court issued a memorandum of decision denying the petition for а writ of habeas corpus. The court summarized the evidence and made the following relevant findings in support of its decision. “[The petitioner] was represented by [Seeger] at all criminal proceedings at issue in the present matter. Seeger reviewed police reports, witness statements, conducted discovery, and met with [the petitioner] to discuss the case and the state‘s evidence. Seeger determined that the state‘s evidence against [the petitioner] and Tarver was significant. Seeger advised [the petitioner] about the risk of going to trial and that, although a jury could acquit him . . . the evidence connecting [the petitioner] and Tarver at the time of the murder could result in the jury convicting him. Seeger described his advice as making sure that [the petitioner] ‘knew exactly moving forward there were consequences of him not taking the plea.’ . . . The decision whether to accept the state‘s plea offer or proceed to trial was solely [the petitioner‘s].
“Tarver‘s trial occurred prior to [the petitioner‘s trial]. Thus, Tarver‘s trial and outcome-a jury convicted him оf felony murder, robbery in the first degree, and conspiracy to commit robbery in the third degree2-served as a barometer for [the petitioner‘s] upcoming jury trial. Seeger‘s advice, primarily premised on the identical evidence in both Tarver‘s and [the petitioner‘s] cases, was unaltered by the result of Tarver‘s trial. Seeger recalled that he may have informed [the petitioner] that the state might want Tarver to cooperate
On the basis of the email exchange and testimony from Seeger and Valdes, the court also found that, after the Tarver trial, the state offered the petitioner a sentence of either twenty-five years of incarceration or, alternatively, twenty years of incarceration, followed by ten years of special parole, in exchange for a guilty plea to a charge of reckless manslaughter. Although the habeas court specifically found that Seeger communicated the twenty year offer to the petitioner and also stated that “Seeger advised [the petitioner] about the plea deals,” at no point did the habeas court find that Seeger had specifically recommended or advised the petitioner to accept or reject either offer. (Emphasis added.)
The court made the following additional findings. “Seeger discussed the state‘s evidence with [the petitioner] and gave him the pros and cons. Seeger noted that juries can be fickle, and it is difficult to predict what a jury will decide. [The petitioner] had to weigh and balance the plea offer versus going to trial. Seeger testified that he generally advises the client, but the ultimate decision to go to trial is made by the client. Regarding [the petitioner‘s] case, Seeger testified that he did not tell [the petitioner] that he would win the case if he went to trial, and he advised [the petitioner] of the consequences of not taking the plea.
“On cross-examination, Seeger noted that [the petitioner] was still quite young at the time his criminal case was being prosecuted. Seeger wanted to make sure that [the petitioner] paid attention to the offer because a trial would likely lead to a fifty to sixty year sentence. Seeger strove to make sure that [the petitioner] understood the consequences of going to trial following Tarver‘s conviction.
“[The petitioner] testified that he never saw a police report and that Seeger never reviewed a police report with him. Nor did Seeger review any witness statements with him. According to [the petitioner], Seeger immediately prior to trial conveyеd the twenty-five year plea offer to him and advised him to not take the plea offer because Seeger did not think the evidence was sufficient and there was no eyewitness to the shooting. [The petitioner] said that Seeger never explained to him what the state needed to prove to convict him of felony murder. [The petitioner] also stated that he never received two offers, only one just prior to trial. . . . [The petitioner] stated that had he fully understood the offer of twenty years plus ten years [of] special parole, then he would have accepted that plea offer.
“On cross-examination, [the petitioner] acknowledged that it was his decision to go to trial instead of pleading guilty. However, he stated that, after Tarver‘s conviction and fifty year sentence, he asked Seeger what he should do. Seeger, according to [the petitioner], told him to still go to trial, and that he trusted that advice because Seeger felt that [a certain witness] statement would not be admitted and that he could impeach Collazo with her multiple statements.”
On the basis of its findings, the cоurt rejected the petitioner‘s claim of ineffective assistance of counsel. The court first concluded that Seeger did not render deficient
“The court also does not find credible [the petitioner‘s] testimony regarding plea offer communications. . . . The court does not find credible [the petitioner‘s] testimony that, after Tarver‘s conviction and fifty year sentence, he asked Seeger what he should do and that Seeger told him to go to trial, and that he trusted that advice because Seeger felt that [a certain witness] statement would not be admitted and that he could impeach Collazo with her multiple statements. To summarize: the court does not find [the petitioner] to be a credible witness regarding the salient plea negotiation issues.”
The court further found that “Seeger advised [the petitioner] about the plea deals and the strength of the state‘s case. Seeger balanced thе need to advise [the petitioner] of what could happen if he did not accept the plea deal and being prepared to go forward with the trial if that is what [the petitioner] wanted to do. [The petitioner] was aware from Seeger‘s advice and the outcome of Tarver‘s trial that his own trial might result in his conviction. In other words, [the petitioner] fully understood the risk of proceeding to trial and chose a trial knowing the significant risk he was taking. [The petitioner‘s] persistence in maintaining his innocence molded his decision to proceed with the trial. [The petitioner] continued to proclaim his innocence even at the sentencing hearing.”
The court concluded that the petitioner also failed to establish that he was prejudiced by his counsel‘s allegedly deficient performance, explaining: “The court does not find credible [the petitioner‘s] present day testimony that he would have pleaded guilty instead of proceeding to trial. Furthermore . . . there is no evidence establishing with a reasonable probability that a judge would have conditionally accepted any of the state‘s plea offers as communicated in the negotiations with Seeger. [The petitioner] has also not persuaded this court that he would have accepted a plea offer had Seeger advised him any differently about the plea offer or the state‘s evidence.” Thereafter, the court granted the petitioner‘s petition for certification to appeal, and this appeal followed.
On appeal, the petitioner claims that the habeas court erred in determining that Seeger did not render dеficient performance in two related respects: (1) Seeger did not make a direct recommendation to the petitioner about whether to accept the state‘s offer; and (2) Seeger failed to advise the petitioner about the desirability of plead-ing guilty in light of Tarver‘s conviction, the risk of a significantly higher sentence following trial, and the admissibility of some of the key evidence that the state would offer. Both of these claims implicate our Supreme Court‘s recent decision in Maia v. Commissioner of Correction, 347 Conn. 449, 298 A.3d 588 (2023), which the petitioner cites.4 The petitioner also claims
The petitioner bears the burden of proving ineffective assistance of counsel under the well established standard of Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Jordan v. Commissioner of Correction, 341 Conn. 279, 281-82, 267 A.3d 120 (2021); Quintana v. Warden, 220 Conn. 1, 5, 593 A.2d 964 (1991). In cases such as this one, involving plea negotiations, to prevail on a claim of ineffective assistance of counsel the petitioner must establish that “(1) counsel‘s performance was deficient, and (2) there was a reasonable probability that-but for the deficient performance-the petitioner would have accepted the plea offer, and that the trial court would have assented to the plea offer.” Moore v. Commissioner of Correction, 338 Conn. 330, 340, 258 A.3d 40 (2021). “An ineffective assistance of counsel claim will succeed only if both prongs [of Strickland] are satisfied. . . . It is axiomatic that courts may decide against a petitioner on either prong [of the Strickland test], whichever is easier.” (Citation omitted; internal quotation marks omitted.) Miller v. Commissioner of Correction, 176 Conn. App. 616, 625-26, 170 A.3d 736 (2017). As stated in Strickland, a court “need not determine whether counsel‘s performance was deficient before examining the prejudice suffered by the [petitioner] as a result of the alleged deficiencies.” Strickland v. Washington, supra, 697.
We resolve this case on the basis of the prejudice prong. “[T]o satisfy the prejudice prong of the Strickland test when thе ineffective advice of counsel has led a defendant to reject a plea offer, the habeas petitioner must show [1] that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), [2] that the court would have accepted its terms, and [3] that the conviction or sentence, or both, under the offer‘s terms would have been less severe than under the judgment and sentence that in fact were imposed.” (Internal quotation marks omitted.) Barlow v. Commissioner of Correction, 343 Conn. 347, 355-56, 273 A.3d 680 (2022).
As previously recited, the habeas court stated that it “does not find credible [the petitioner‘s] present day testimony that he would have pleaded guilty instead of proceeding to trial. . . . [The petitioner] has also not persuaded this court that he would have accepted a plea offer had Seeger advised him any differently about the plea offer or the state‘s evidence.” We review these findings deferentially. Ordinarily in a habeas appeal, the ultimate question of whether a habeas petitioner‘s right to the effective assistance of counsel is “a mixed determination of law and fact that requires the application of legal principles to the historical facts of [the] case. . . . As such, that question requires plenary review by this court unfettered by the clearly erroneous standard. . . . In the context of rejected plea offers, however, the specific underlying question of whether there was a reasonable probаbility that a habeas petitioner would have accepted a plea offer but for the deficient performance of counsel is one of fact, which will not be disturbed on appeal unless clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Barlow v. Commissioner of Correction, supra, 343 Conn. 356-57.
Not only does a clearly erroneous standard apply in the present case on the issue of prejudice, but the habeas court made its findings regarding whether the petitioner would have accepted the plea offer solely on the basis of credibility determinatiоns, which calls for further deference. “The habeas court had the opportunity to observe firsthand the conduct, demeanor and attitude of the witnesses, and, therefore, it is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Internal quotation marks omitted.) Id., 358. In this case, the habeas court heard and saw the petitioner testify at considerable length.
There were several other factors supporting the habeas court‘s determination that the petitioner was not a credible witness on the issue of prejudice. First, thе habeas court did not single out the petitioner‘s testimony with respect to whether he would have accepted the state‘s guilty plea offer but, rather, rejected the petitioner‘s testimony across the board. The court ultimately found that it “does not find [the petitioner] to be a credible witness regarding the salient plea negotiation issues.” Second, the court heard the petitioner admit on cross-examination that he had told the judge at sentencing six times that he was innocent and that he was not going to admit to something that he did not do. The court reasonably could have concluded that a petitioner who maintained his innocence so strongly on a felony murder charge was unlikely to plead guilty to a manslaughter charge.5 Thus, the habeas court had good reason not to accept the petitioner‘s testimony that he would have pleaded guilty had Seeger advised him differently about the state‘s plea offer.
The petitioner also attacks, as clearly erroneous, the court‘s finding on the issue of prejudice that “there is no evidence
The judgment is affirmed.
In this opinion the other judges concurred.