Miller v. Warden, CV154007199S

Peter MILLER (#201269) v. WARDEN

No. CV154007199S

Superior Court of Connecticut, Judicial District of Tolland, Somers, Geographic Area 19

August 27, 2018

UNPUBLISHED OPINION

OPINION

Kwak J.

On May 7, 2015, the petitioner, Peter Miller, filed a petition for a writ of habeas corpus, which was amended by assigned counsel on September 8, 2015. The amended petition raises claims in two counts and challenges the petitioner’s conviction in docket number CR11-0260215, GA2 at Bridgeport, following his guilty plea on June 7, 2012, to the charge of possession of one kilogram of a cannabis-type substance with the intent to dispense in violation of General Statutes § 21a-278(b). The petitioner was sentenced in accordance with the plea agreement to a total effective sentence of seven years to serve, execution suspended after the service of sixteen months incarceration, followed by three years of probation.

The petitioner alleged in the first count of his amended petition for a writ of habeas corpus that attorney Jared Millbrandt provided ineffective assistance of counsel and thereby rendered invalid his guilty plea. More specifically, the petitioner alleged that attorney Millbrandt failed to: (a) conduct an adequate investigation into the circumstances of the case; (b) adequately advise and assist the petitioner with the process of applying for admission into a pretrial supervised diversionary program for persons with psychiatric disabilities; (c) adequately advise and assist the petitioner with the process of applying for admission into a pretrial treatment program for drug dependent persons; (d) adequately advocate for the petitioner to be found to be a drug dependent person; (e) adequately advocate for an order of suspension of prosecution and treatment for drug dependency (f) adequately research the legal issue of the petitioner’s immigration status and the probability of deportation removal, and inadmissibility for reentry under the terms of the plea agreement; (g) accurately advise the petitioner about the probability of deportation, removal, and inadmissibility for reentry under the terms of the plea agreement; and (h) make the petitioner’s immigration status and the probability of deportation, removal, and inadmissibility for reentry, part of the plea bargaining process with the prosecuting authority and the judicial authority. The petitioner further alleged that but for these deficiencies by trial counsel, he would not have pleaded guilty. The second count of the amended petition alleged that the petitioner’s right to due process was violated because his guilty plea was not made knowingly, intelligently, and voluntarily because he did not know or understand the immigration and deportation consequences of his plea. As relief, the petitioner requested that the habeas court vacate the judgment of conviction and such other relief that law and justice require.

The respondent’s return denied the petitioner’s claims and asserted as a special defense that the petitioner had procedurally defaulted because he failed to file a motion to withdraw his guilty plea with the trial court and appeal from the denial thereof. The petitioner’s reply denied that he had procedurally defaulted and asserted cause and prejudice (i.e., ineffective assistance by trial counsel).

The matter proceeded to trial over the course of four days before the court, Fuger, J., which denied the claims. The petitioner appealed from the denial of the petition for certification to appeal. The Appellate Court reversed and remanded the matter for further proceedings. Miller v. Commissioner of Correction, 176 Conn.App. 616, 170 A.3d 736, cert denied, (2017).

The parties appeared before this court on May 7, 2018, for the remanded proceedings. The parties entered several additional exhibits to supplement those previously entered into evidence. The petitioner testified and presented the testimony of Julie Shortier, Janet West, Dr. Khan, attorney Nancy Anderson, and attorney Sarah Simeonidis. The respondent presented testimony from attorneys DeJoseph and Jared Millbrandt.

For the reasons articulated more fully below, judgment shall enter granting the petition for a writ of habeas corpus.

DISCUSSION

I. Procedural History and Appellate Court Decision

"The petitioner was charged under two separate docket numbers with a variety of drug-related offenses. On June 7, 2012, the petitioner appeared before the court, Iannotti, J., and, pursuant to a plea deal, pleaded guilty to possession of a controlled substance with intent to sell in violation of General Statutes § 21a-278(b). At that time, the prosecutor recited the following facts underlying this plea. On or about October 13, 2011, a United States Postal Service inspector intercepted a package that contained eighteen pounds of marijuana. Thereafter, a controlled delivery was made to 15 Pinetree Lane in Fairfield. The package was accepted by the petitioner’s girlfriend, Tracy Dapp, who, upon accepting it, informed the detectives that the parcel was for the petitioner. Subsequently, the petitioner arrived at Dapp’s residence, where he was arrested and made incriminating statements to the police. The record indicates that a search of the petitioner’s vehicle revealed the eighteen pounds of marijuana, but it is unclear whether Dapp gave the petitioner the marijuana to put in his vehicle before he was apprehended by the police at her residence.

"The petitioner was represented before the trial court by Attorney Jared Millbrandt, a public defender. During the plea canvass, the court asked the petitioner whether he had discussed with counsel ‘the charge he pleaded guilty to, the elements of the offense, maximum penalty twenty years, [and] mandatory minimum five years,’ and whether the petitioner understood that the court could deviate below the mandatory minimum sentencing guidelines, to which the petitioner answered, ‘Yes.’ The court then asked whether the petitioner was pleading guilty ‘freely and voluntarily.’ The petitioner replied, ‘Yes.’ The court asked, ‘Are the facts as read by the state essentially correct?’ The petitioner answered, ‘Correct.’ Finally, the court asked the following: ‘Do you understand [that] if you are not a citizen this can result in deportation from the United States, exclusion from the admission to the United States, [and] denial of naturalization pursuant to the laws of the United States?’ The petitioner replied, ‘Yes.’ The court then found that the plea was voluntarily and knowingly made with the assistance of competent counsel. On July 30, 2012, the court sentenced the petitioner to seven years of incarceration, execution suspended after service of sixteen months, followed by three years of probation.

"On July 30, 2013, the United States Immigration Court ordered that the petitioner be removed from the United States to Jamaica because his conviction of possession of a controlled substance with intent to sell constituted an aggravated felony, for which the consequence is mandatory deportation."^[1] Miller v. Commissioner of Correction, supra, 176 Conn.App. 617-19.

"The sixth amendment to the United States constitution, made applicable to the states through the due process clause of the fourteenth amendment, affords criminal defendants the right to effective assistance of counsel. Davis v Commissioner of Correction, 319 Conn. 548, 554, 126 A.3d 538 (2015), cert. denied sub nom. Semple v. Davis, 136 S.Ct. 1676, 194 L.Ed.2d 801 (2016); see also Thiersaint v. Commissioner of Correction, 316 Conn. 89, 100, 111 A.3d 829 (2015) (criminal defendant constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings). Although a challenge to the facts found by the habeas court is reviewed under the clearly erroneous standard, whether those facts constituted a violation of the petitioner’s rights under the sixth amendment is a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard ...

"It is well established that the failure to adequately advise a client regarding a plea offer from the state can form the basis for a sixth amendment claim of ineffective assistance of counsel. The United States Supreme Court ... recognized that the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), applies to ineffective assistance of counsel claims arising out of the plea negotiation stage. Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (Citations omitted; internal quotation marks omitted.) Duncan v. Commissioner of Correction, 171 Conn.App. 635, 646-47, 157 A.3d 1169, cert. denied, 325 Conn. 923, 159 A.3d 1172 (2017).

"We now set forth the well established standard that applies to a claim of ineffective assistance of counsel. ‘To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, [supra, 466 U.S. at 687, 104 S.Ct. 2052] ... The petitioner has the burden to establish that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance ...

" ‘To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the [s]ixth [a]mendment ... It is not enough for the petitioner to simply prove...