89 Conn. App. 387 | Conn. App. Ct. | 2005
Opinion
The petitioner, Mervin Brandy, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claims that the court improperly (1) denied his petition for certification to appeal and (2) denied his petition for a writ of habeas corpus, which was based on ineffective assistance of trial counsel. We dismiss the petitioner’s appeal.
The habeas court found the following facts. The petitioner was arrested on January 22, 1999, and charged with assault in the second degree in violation of General Statutes § 53a-60, breach of the peace in violation of General Statutes (Rev. to 1999) § 53a-181, reckless endangerment in the first degree in violation of General Statutes § 53a-63, possession of narcotics in violation of General Statutes § 21a-279 (a) and violation of probation pursuant to General Statutes § 53U-32.
On October 8, 1999, the petitioner accepted the pretrial settlement offer outlined by the court, pleaded guilty to all criminal charges under North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), and admitted the violation of probation. At the plea canvass, the court went over the plea agreement with the petitioner, who indicated that he understood the nature of the agreement.
The petitioner filed his habeas petition on March 28, 2002.
By memorandum of decision filed on August 15,2003, the court denied the habeas petition on the ground that
The petitioner claims that the court improperly denied: (1) his petition for certification to appeal and (2) his habeas petition, which was based on his trial counsel’s ineffectiveness in advising him to plead guilty to all charges without a sentence cap and to reject the original plea offer of three years imprisonment and three years special parole.
We first consider the petitioner’s claim that the habeas court improperly denied his petition for certification to appeal. “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, he must demonstrate that the denial of his petition for certification constituted an
“A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” Strickland v. Washington, supra, 466 U.S. 687. A court may find against the defendant on either the deficient performance prong or the prejudice prong, whichever is easier. Id., 697.
Although Strickland applies generally to ineffective assistance of counsel claims, “the United States Supreme Court has articulated a modified prejudice
Keeping the modified Strickland standard in mind, we consider whether the court abused its discretion in denying the petitioner’s request for certification to appeal in regard to his claim that Silverstein was ineffective in advising him to plead guilty to all charges without a sentence cap.
In this opinion the other judges concurred.
The charges carried a total maximum penalty of eighteen and one-half years imprisonment, broken down as follows: assault in the second degree, five years; breach of the peace, six months; reckless endangerment in the first degree, one year; possession of narcotics, seven years; and violation of probation, five years.
The petitioner had turned down the offer once before because he believed the offered punishment was too harsh.
The following colloquy took place at the plea canvass:
“The Court: Okay. He’s charged with assault second, that carries five years imprisonment. Breach of the peace carries six months, so that puts you up to five and a half years. Reckless endangerment . . .in the first degree carries one year. So that puts him up to six and a half years. On the [violation of probation] he owes five years, so that’s eleven and a half years and the possession of narcotics carries seven years. So, that’s eighteen and a half years. . . .
“Mr. Brandy, the state intends to put you to plea on all those charges. I had a discussion with your lawyer and the state’s attorney, and I indicated to your lawyer that if you wanted to be put to plea, I would canvass your pleas and accept them after a canvass, but I made no promises whatsoever. If I think it’s appropriate, I can give you the whole . . . eighteen and a half years to serve, and you can’t take your plea back, if I think it’s appropriate. I’m not saying I’m going to do that, but I could.
“[The Petitioner]: I just hope that you’ll be fair.
“The Court: I’m going to continue it for sentencing. I’ll listen to your lawyer’s arguments [and] the state’s arguments. I’ll review any materials that are submitted to me, and then I’m going to do what I think is appropriate.
“[The Petitioner]: I’m going to enter my plea.
“The Court: You want to enter your plea. Okay. You talked to your lawyer about this, and you understand what you’re doing. Is that correct?
“[The Petitioner]: Yeah. I just hope that you be fair, sir.
“The Court: All right. Okay. You’ve explained that to him, Mr. Silverstein?
“[Petitioner’s Counsel]: He’s aware that there has been no agreement on these files, and he just indicates that he hopes that you’ll be fair when you hear this for sentencing.
“The Court: I’m going to do my best to be fair, but I want to satisfy myself that he understands and you understand that I haven’t made any promises to anybody of what I’m going to do. He’s exposed to the entire eighteen and one-half years to serve. He can’t take his plea back. Are you satisfied that he understands that, Mr. Silverstein? . . .
“[Petitioner’s Counsel]: Yes, I’m satisfied the he understands that.”
Silverstein testified before the habeas court that he recommended that the petitioner file a habeas petition alleging Silverstein’s ineffective assistance.
“Successful at trial” means a more favorable outcome than that achieved in the pleading process. See Copas v. Commissioner of Correction, 234 Conn. 139, 157 n.10, 662 A.2d 718 (1995).
Because it was not raised before the habeas court, we do not consider the petitioner’s claim that the court improperly denied his habeas petition in light of his claim that Silverstein was ineffective in advising him regarding the original plea offer of three years imprisonment and three years special parole. Even interpreting the pleadings broadly, we cannot conclude that the claim was raised in the habeas petition. The petitioner refers to paragraphs twelve and fifteen through eighteen as including this claim. The paragraph which comes closest to alleging the claim is paragraph fifteen, which reads: “Although terms of a plea agreement were discussed by Attorney Silverstein with the state’s attorney, in the presence of the judge who later presided at [the] petitioner’s plea and sentencing hearings, Judge Gary White [and] Attorney Silverstein allowed the petitioner to enter his guilty pleas and admissions without any agreement or ‘cap’ as to the sentence that might be imposed.” This claim, as is the case with those raised in paragraphs twelve and sixteen through eighteen, goes to Silverstein’s competence in advising the petitioner to enter a guilty plea at the plea canvass and not to his advice regarding the initial plea offer.
Furthermore, the petitioner elicited no testimony before the court indicating that Silverstein’s effectiveness as counsel was challenged as to the initial plea offer. The extent of the substantive testimony regarding the plea offer during two days of trial was as follows. Silverstein noted that the plea offer was outstanding when he entered his appearance and that it was “rejected because of certain things that were going on in [the petitioner’s] life. You
The petitioner raised this issue for the first time in his motion for articulation, which was properly denied by the court as it went to the issue of performance, whereas the court had made its decision under the prejudice prong of Strickland v. Washington, supra, 466 U.S. 687. Furthermore, a motion for articulation is not the proper forum for raising new claims.