Bonds v. Comm'r of Corr.

309 A.3d 411

223 Conn.App. 645

Darryl Andrew BONDS, Jr.

v.COMMISSIONER OF CORRECTION

(AC 46191)

Appellate Court of Connecticut.

Argued December 5, 2023

Officially Released February 6, 2024

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).

Bright, C. J., and Cradle and Schuman, Js.

SCHUMAN, J.

₆₄₇The 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 rejected 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., at 113, 158 A.3d 826. 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., at 114, 158 A.3d 826. 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 General Statutes (Rev. to 2009) § 53a-54c, one count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), and ₆₄₈one count of conspiracy to commit robbery in the second degree in violation of General Statutes § 53a-48 (a) and General Statutes (Rev. to 2009) § 53a-135. Id., at 114–15, 158 A.3d 826. A jury found the petitioner guilty of all counts. Id., at 115, 158 A.3d 826. The court, White, J., sentenced the petitioner to a total effective term of fifty-five years of incarceration, followed by five years of special parole. Id. This court affirmed the conviction on direct appeal. Id., at 138, 158 A.3d 826.

The petitioner subsequently filed the present habeas action and, in his third amended petition, alleged that his criminal trial counsel, Stephan Seeger, had ren- dered ineffective assistance during plea negotiations prior to his criminal trial.¹ Specifically, the petitioner alleged that Seeger provided constitutionally deficient performance 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 also alleged that, but for his counsel’s allegedly deficient performance, he would have pleaded guilty and he would have received a more favorable disposition. The respondent, the Commissioner of Correction, filed a return denying the allegations in the operative petition or leaving the petitioner to his proof.

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; Brian Carlow, an attorney whom the petitioner presented as a legal expert; and Yvania Collazo, the petitioner’s cousin, who ₆₄₉testified 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 a 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 of 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, ₆₅₀was 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 and testify in his case, which could benefit Tarver at his sentencing.³ Otherwise, the evidence in both defendants’ cases was the same." (Citation omitted; footnotes added; footnote omitted.)

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.

₆₅₁"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 conveyed 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 court rejected the petitioner’s claim of ineffective assistance of counsel. The court first concluded that Seeger did not render defi- cient performance during plea negotiations. The ₆₅₂court explained: "As to the allegation that Seeger failed to adequately advise [the petitioner] of the evidence against him, the court concludes that this claim has no merit. The court does not credit [the petitioner’s] testimony that Seeger did not show him and review items such as police reports and witness statements, nor does the court credit his testimony that Seeger never explained to him what the state needed to prove to convict him of felony murder. The court credits Seeger’s testimony about his review, investigation, and discussions with [the petitioner]. Therefore, the claim that Seeger failed to adequately advise [the petitioner] of the evidence against [him] must fail.

"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...