Ebron v. Commissioner of Correction

992 A.2d 1200

120 Conn.App. 560

Ahmed Kenyatta EBRON v. COMMISSIONER OF CORRECTION.

No. 29583.

Appellate Court of Connecticut.

Argued November 16, 2009.

Decided April 27, 2010.

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Michael Proto, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, Linda N. Howe, senior assistant state's attorney, and David J. Vandrilla, certified legal intern, for the appellant (respondent).

Jennifer L. Bourn, deputy assistant public defender, for the appellee (petitioner).

DiPENTIMA, GRUENDEL and PETERS, Js.^*

DiPENTIMA, J.

The respondent, the commissioner of correction,¹ appeals from the judgment of the habeas court granting the amended petition for a writ of habeas corpus filed by the petitioner, Ahmed Kenyatta Ebron. The petitioner had alleged that because his counsel failed to advise him to accept a very favorable plea offer he received ineffective assistance. On appeal, the respondent claims that the habeas court improperly (1) concluded that the petitioner's counsel was deficient, (2) concluded that the petitioner was prejudiced as a result of the deficiency and (3) ordered an incorrect remedy. We disagree and, accordingly, affirm the judgment of the habeas court.²

The following factual and procedural history is relevant to the issues raised on appeal. In docket number CR-02-12149, the petitioner had been convicted of possession of narcotics with intent to sell. On May 20, 2003, he was sentenced to eight years incarceration, suspended after twenty months, followed by a three year conditional discharge. In 2005, the state charged the petitioner with various criminal offenses in several informations. Specifically, in docket number CR-05-40965, the state charged the petitioner with two counts of attempt to commit assault of a police officer in violation of General Statutes §§ 53a-49 and 53a-167c, one count of possession of a dangerous weapon in violation of General Statutes § 53-206 and one count of disobeying the signal of a police officer in violation of General Statutes § 14-223(a).³ In docket number CR-05-41361, the state charged the petitioner with assault in the third degree in violation of General Statutes § 53a-61.⁴ Finally, in docket number CR-05-42862, the state charged the petitioner with assault in the third degree in violation of § 53a-61.⁵ On the basis of these charges, the petitioner was exposed to a period of incarceration of thirty-five years. The petitioner also faced a term of incarceration of six years and four months due to the revocation of the conditional discharge from his earlier conviction. His total exposure for all of the charges against him was forty-one years and four months of incarceration.

Attorney Richard Silverstein represented the petitioner at all relevant times. Silverstein discussed the charges against the petitioner with assistant state's attorney John P. Doyle, Jr. Doyle offered to recommend an effective sentence of six years incarceration if the petitioner pleaded guilty to a violation of the conditional discharge, at least one count of attempt to commit assault of a police officer and several misdemeanors. Silverstein informed Doyle that he had discussed the offer with the petitioner and that the petitioner had rejected it. The petitioner then entered a plea of not guilty to all of the charges.

Despite the petitioner's rejection, Doyle maintained the offer to the petitioner. At a pretrial conference on August 3, 2005, the state formally offered ten years incarceration, suspended after six years, with five years probation, in exchange for the petitioner's guilty plea. The court, Alexander, J., indicated that the offer was appropriate, except that the proposed five years probation be a conditional discharge. Silverstein believed that this offer of six years incarceration was too high. He conveyed the offer to the petitioner and told him that he had three options: (1) accept the plea bargain offered by the state, with the sentence recommendation of ten years incarceration, suspended after serving six years; (2) proceed to a hearing on the violation of conditional discharge; or (3) enter an "open plea," or one with no recommendation from Doyle, before Judge Damiani. Silverstein informed the petitioner that he "probably would not do much worse with Judge Damiani, or words to that effect." (Internal quotation marks omitted.) Silverstein never recommended that the petitioner accept the plea bargain offered by the state.

On August 31, 2005, a hearing was scheduled for determination of the petitioner's violation of the conditional discharge. Silverstein informed Judge Damiani that the petitioner instead elected to enter an open plea. The petitioner then pleaded guilty, pursuant to the Alford doctrine,⁶ to violation of a conditional discharge for a felony, two counts of assault in the third degree and one count of attempt to commit assault of a police officer. Following a thorough canvass of the petitioner, Judge Damiani accepted his plea and informed him that he could receive a sentence of eighteen years and four months incarceration. The court ordered a presentence investigation (PSI) report; see General Statutes § 54-91a; and continued the matter for sentencing.

On December 5, 2005, the court sentenced the petitioner to six years incarceration for violation of the conditional discharge, a consecutive five years incarceration for attempt to commit assault of a police officer and ordered an unconditional discharge on the conviction for two counts of assault for a net effective sentence of eleven years. The petitioner unsuccessfully moved for review of the sentence.

The petitioner then commenced the present action for a writ of habeas corpus. In his second amended petition, filed October 24, 2007, he alleged that Silverstein provided ineffective assistance of counsel by failing to advise him properly with respect to the state's offer of six years incarceration. He further alleged that Silverstein provided ineffective assistance with respect to the charge of attempt to commit assault of a police officer.⁷ Finally, the petitioner claimed that his guilty plea pursuant to the Alford doctrine was invalid and constituted a violation of his right to due process.

Following a trial, the habeas court issued a memorandum of decision, filed January 14, 2008, granting the petition for a writ of habeas court. Specifically, the court found that Silverstein had provided ineffective assistance of counsel with respect to the state's plea offer and that the petitioner was prejudiced thereby. The court rejected the petitioner's claims with respect to the charge of attempt to commit assault of a police officer and that his plea was invalid. As a remedy, the court directed the trial court to vacate the petitioner's plea and to afford him the opportunity to accept the state's offer of ten years incarceration, suspended after six years. If the petitioner were to accept this offer, he would then be resentenced in accordance with the plea bargain and the applicable law. The habeas court subsequently granted the respondent's petition for certification to appeal from the granting of the writ of habeas corpus. This appeal followed. Additional facts will be set forth as necessary.

Before addressing the respondent's specific claims, we begin by setting forth the relevant legal principles and our standard of review. "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. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. ... The claim will succeed only if both prongs are satisfied." (Internal quotation marks omitted.) Fernandez v. Commissioner of Correction, 291 Conn. 830, 834-35, 970 A.2d 721 (2009); Eastwood v. Commissioner of Correction, 114 Conn.App. 471, 476-77, 969 A.2d 860, cert. denied, 292 Conn. 918, 973 A.2d 1275 (2009). Our Supreme Court has recognized that pretrial negotiations implicating the decision of whether to plead guilty is a critical stage, and, therefore, a defendant is entitled to adequate and effective assistance of counsel at this juncture of the criminal proceedings. Copas v. Commissioner of Correction, 234 Conn. 139, 153, 662 A.2d 718 (1995).

"In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but 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. ... The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony." (Internal quotation marks omitted.) Lewis v. Commissioner of Correction, 117 Conn.App. 120, 125, 977 A.2d 772, cert. denied, 294 Conn. 904, 982 A.2d 647 (2009). Finally, we note that "the issue of whether a criminal defendant had received effective assistance of trial counsel is a mixed question of law and fact; however, such a question...