Maia v. Comm'r of Corr.

347 Conn. 449

298 A.3d 588

Derek MAIA

v.COMMISSIONER OF CORRECTION

SC 20786

Supreme Court of Connecticut.

Argued March 23, 2023

Officially Released August 8, 2023

James A. Killen, senior assistant state's attorney, with whom, on the brief, was Marc Ramia, senior assistant state's attorney, for the appellant (respondent).

Kayla R. Stephen, with whom was Alice Osedach Powers, for the appellee (petitioner).

Robinson, C. J., and McDonald, D'Auria, Mullins, Ecker and Alexander, Js.

D'AURIA, J.

In this certified appeal, we consider whether trial counsel for the petitioner, Derek Maia, rendered ineffective assistance when he failed to recommend that the petitioner accept the court's pretrial plea offer of a forty-five year sentence of incarceration, considering that the court sentenced him to sixty years after trial. We disagree with the habeas court's determination that counsel's lack of a specific recommendation amounted to deficient performance pursuant to Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). As a result, we reverse the habeas court's judgment and remand the case to that court with direction to deny the petitioner's petition for a writ of habeas corpus.

As reported in the Appellate Court's opinion in State v. Maia , 48 Conn. App. 677, 678–80, 712 A.2d 956, cert. denied, 245 Conn. 918, 717 A.2d 236 (1998), affirming the trial court's judgment of conviction, the jury in the petitioner's underlying criminal case reasonably could have found the following facts. In October, 1993, "a community newspaper association known as Da Ghetto held a [fundraising] Halloween party at the Casa Mia restaurant in Waterbury." Id., at 678, 712 A.2d 956. Guests paid an admission price to attend the party. Id. "The [petitioner] arrived [at the event] between 11 and 11:30 p.m. Upon his arrival, the [petitioner] complained about having to wait outside for a long time before he was admitted inside. The party had been planned to continue until 2 a.m. ... At some point, however, Mark Yates, the senior editor of Da Ghetto, announced that the party was ending early because of ‘inappropriate conduct.’ ...

"The [petitioner] angrily confronted Yates about ending the party early and demanded his money back. ... The [petitioner] then had an altercation with Leroy Flint, an employee of Casa Mia and the boyfriend of the restaurant owner, Delores Trudeau, and had further altercations with his brother and his cousin when they tried to calm him, and with Yates’ brother. The [petitioner], who was described as acting ‘like a typhoon,’ pushed and shoved anyone who was in his path. Trudeau overheard the [petitioner] state that ‘someone was going to stop breathing.’ The [petitioner] eventually left Casa Mia with his friend, Brian Brown. The [petitioner] and Brown drove to the house where Brown's girlfriend lived. Once there, Brown went inside and the [petitioner] waited in the car. After about five minutes, Brown returned and gave the [petitioner] a bag containing a gun. The [petitioner] and Brown then proceeded back to Casa Mia.

"At approximately 1 a.m. ... Martin Hayre, Michael Millhouse and the victim, Christopher Love, were leaving Casa Mia together. Hayre and the victim walked out of Casa Mia and waited on the curb for Millhouse to come with his car. When Millhouse pulled his car up, the victim opened the front passenger door and Hayre opened the right rear door. As they were getting into the car, the [petitioner] approached, said something to the victim and then shot the victim in the face. The victim died of a gunshot wound to the head.

"At trial, the [petitioner] admitted that he was responsible for the victim's death. He testified, however, that he did not intend to take the victim's life. The [petitioner] testified that he had been drinking and had smoked marijuana that night. He testified that he did not leave the gun in the car when he and Brown returned to Casa Mia because he had been in previous arguments at the bar and had been jumped by several people. He testified that he approached the victim and wanted to talk to him about the way the party was ended. At that time, the gun was in the [petitioner's] shirt pocket, with the handle hanging out. The [petitioner] testified that he heard footsteps behind him and that as he was going to turn around, he was ‘yanked from the back by [the] hood.’ His arm then went up and the gun went off. The [petitioner] was convicted of murder and sentenced to a term of sixty years [of] imprisonment." (Footnotes omitted.) Id., at 678–80, 712 A.2d 956. The petitioner appealed to the Appellate Court, which upheld the trial court's judgment of conviction. See id., at 690, 712 A.2d 956.

The petitioner later filed this habeas action and, in his second amended petition, alleged that his trial counsel, Attorney Alan McWhirter, had rendered ineffective assistance by "fail[ing] to adequately advise the petitioner of the strength of the state's case and the weakness of the petitioner's possible defenses" and "fail[ing] to adequately advise the petitioner to accept a plea offer."¹ The petitioner argued that McWhirter provided ineffective assistance because, when he presented the court's plea offer of forty-five years to the petitioner, McWhirter did not advise him to accept this offer, notwithstanding that the petitioner faced the possibility of sixty years in prison.

Despite concluding that McWhirter had adequately advised the petitioner of the strengths and weaknesses of the state's case, the habeas court ruled in the petitioner's favor, finding that "McWhirter rendered deficient performance by not recommending to [the petitioner] that he accept the court indicated offer of forty-five years." The habeas court further concluded that the petitioner was prejudiced because it was reasonably probable that, without McWhirter's deficient performance, the petitioner would have accepted the plea offer and that the trial judge would have accepted the plea agreement.

The habeas court found the following additional facts that are relevant to this appeal. McWhirter had been a public defender for eighteen years prior to the petitioner's jury trial. He had been trial counsel in many criminal cases, including one dozen or more murder trials. McWhirter began representing the petitioner the night that the petitioner turned himself in to the police. He began preparing for trial the moment representation started.

This preparation included using the petitioner's probable cause hearing to discover relevant information and to question witnesses in advance of trial, using investigators to produce evidence to counter the state's evidence and support his client's defenses, and receiving and reviewing all discovery from the state. McWhirter also explored the possibility of resolving the case via plea discussions.

In McWhirter's opinion, the state's case against the petitioner was very strong and would be very difficult to defend. He testified that the state was very forthcoming in the discovery process, which he took as a sign that the state was confident in its case. McWhirter's defense strategy was to negate the intent element of murder, resulting in a conviction of the lesser included offense of manslaughter in the first degree. McWhirter intended to show that the petitioner accidentally shot the victim after someone jumped on his back. Other than the petitioner's own testimony, the only evidence to support this theory was the statement of Clyde Wilkins. Wilkins told the petitioner's private investigator that the petitioner had shot the victim after he was accosted from behind by Hayre. Critically, Wilkins’ statement contradicted Hayre's statement. Hayre told the police that the petitioner had walked up to the victim, took out a gun, put it to the victim's head and fired one gunshot at close range. Hayre stated that the "scuffle" between himself and the petitioner occurred after the petitioner shot the victim. McWhirter testified that a potential weakness in the state's case was that the eyewitnesses testifying against the petitioner, including Hayre, were the victim's friends, which the defense could use to show bias. According to McWhirter, the petitioner did not disagree with the defense strategy. McWhirter anticipated that the state would argue that, because the petitioner had left Casa Mia and returned with a gun, he intended to shoot and kill the victim.

He did not expect the jury to consider the petitioner's leaving and returning with a gun in a good light.

About two months after the petitioner's arrest, the state offered him a sentence of sixty years of incarceration in exchange for a guilty plea to the charge of murder. McWhirter communicated this offer to the petitioner and discussed it with him. As this offer presented no tangible benefit—it was the maximum charge and maximum sentence—the petitioner did not accept it. After the initial offer, McWhirter discussed the possibility of a plea agreement with the state, but the state made no further offer.

Almost two years after the initial plea offer, during a judicial pretrial, the court presented a plea agreement offering a sentence of forty-five years in exchange for a guilty plea to the charge of murder. McWhirter communicated the court's offer to the petitioner but could not recall their specific discussion about it. McWhirter testified, however, that his normal practice was to explain to clients that, if they did not accept a plea offer, the court would withdraw it and not make it available again. According to McWhirter, he never advised clients to accept or not to accept a plea offer. It was his practice to allow his clients to come to that decision independently without a specific recommendation. He testified that, in his opinion, only a client can make the decision about whether to accept a plea offer. McWhirter could not recall if the petitioner ever advised him that he did not want to proceed to trial. Importantly, McWhirter testified that he...