Rodriguez v. Comm'r of Corr.

JOSUE RODRIGUEZ v. COMMISSIONER OF CORRECTION

AC 35929

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued May 9, 2016

July 26, 2016

Beach, Sheldon and Gruendel, Js.

(Appeal from Superior Court, judicial district of Tolland, Sferrazza, J.)

David V. DeRosa, assigned counsel, for the appellant (petitioner).

Lisa Herskowitz, senior assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Kelly A. Masi, senior assistant state's attorney, for the appellee (respondent).

Opinion

GRUENDEL, J. The petitioner, Josue Rodriguez, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. He claims that the court improperly concluded that he had not demonstrated that his trial counsel rendered ineffective assistance with respect to (1) his Alford¹ plea and (2) his counsel's alleged conflict of interest. We affirm the judgment of the habeas court.

The relevant facts are as follows. "In 2005, the [petitioner] was convicted of sale of narcotics in violation of General Statutes § 21a-277 (a), and sentenced to twelve years incarceration, execution suspended, with five years probation. As a condition of the [petitioner's] probation, he was not to violate the criminal laws of the state. In 2007, the [petitioner] was convicted of risk of injury to a child in violation of General Statutes § 53-21 (a) (1) and burglary in the third degree in violation of General Statutes § 53a-103. He was sentenced to a total effective term of ten years incarceration, execution suspended, and five years probation. The [petitioner] also was found in violation of his probation imposed in 2005, as a result of those offenses. His probation was not revoked, but, rather, it was to run concurrently with the probationary term imposed for the conviction. The conditions of his probation included, inter alia, no contact with the victim, Damaris Sanchez, and a 'zero tolerance' provision for any violations.

"In the early morning hours on November 14, 2008, Sanchez, the [petitioner's] former wife with whom he had an 'on and off' relationship, was asleep in her home when she awoke to the smell of gasoline fumes. When she looked outside the house, she saw a shadowy human figure walk near the front of her house. When she saw the person's face, she recognized the person as the [petitioner]. She saw the [petitioner] light a lighter near the hood of her car, and she yelled to him, 'what are you doing to my car.' The [petitioner] ran away. Once outside, Sanchez noticed that the [petitioner] had vandalized her house and car with obscene words and phrases.

"On April 13, 2009, the court found that the [petitioner] violated his probation by committing criminal mischief and violating the no contact order. The court revoked his probation and sentenced him to serve the entire twelve years of his original 2005 sentence." State v. Rodriguez, 130 Conn. App. 645, 646-47, 23 A.3d 826 (2011), aff'd, 320 Conn. 694, 132 A.3d 731 (2016). That same day, the petitioner "appeared before another judge on the underlying criminal charges and pleaded guilty, pursuant to the Alford doctrine, to attempt to commit arson in the second degree in violation of General Statutes §§ 53a-112 and 53a-49. The [petitioner] was thereafter sentenced to eight years incarceration, con-current to the twelve year sentence imposed for violating probation." (Footnote omitted.) Id., 648-49.

"The [petitioner] filed a timely appeal from the judgment of the trial court finding him in violation of his 2005 probation, contending, among other things, that there was insufficient evidence for the court to find by a preponderance of the evidence that he had violated the terms of his probation. . . . The [petitioner], however, did not take a timely appeal challenging his guilty plea to the charge of attempt to commit arson." (Citation omitted.) State v. Rodriguez, 320 Conn. 694, 697, 132 A.3d 731 (2016). On appeal, this court dismissed as moot the petitioner's challenge to the finding that he violated the terms of his probation. State v. Rodriguez, supra, 130 Conn. App. 649. Our Supreme Court thereafter affirmed the propriety of that determination. State v. Rodriguez, supra, 320 Conn. 706.

Apart from his violation of probation appeal, the petitioner, on July 30, 2009, filed a petition for a writ of habeas corpus, claiming that Attorney William Gerace, who represented him at both of the April 13, 2009 hearings, had rendered ineffective assistance of counsel. In the first count of his amended petition, the petitioner alleged that Gerace had simultaneously represented him and Sanchez in 2005, thereby giving rise to a conflict of interest. The second count of that petition alleged, inter alia, that Gerace "failed to advise the petitioner that a plea [to attempt to commit arson in the second degree] would invalidate any appeal" of his violation of probation conviction.

Following a trial, the habeas court denied his petition, finding that the petitioner did not satisfy his burden with respect to the claims contained therein. The court subsequently granted the petition for certification to appeal, and this appeal followed.

Before considering the specific claims advanced by the petitioner in this appeal, we first note the standard of review that governs allegations of ineffective assistance of counsel. "The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . The application of the habeas court's factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review." (Internal quotation marks omitted.) Mozell v. Commissioner of Correction, 291 Conn. 62, 76-77, 967 A.2d 41 (2009).

"A criminal defendant's right to the effective assistance of counsel extends through the first appeal of right and is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution." Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008). "In Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction . . . . That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense [by establishing a reasonable probability that, but for the counsel's mistakes, the result of the proceeding would have been different]. . . . Furthermore, [i]n a habeas corpus proceeding, the petitioner's burden . . . is not met by speculation . . . but by demonstrable realities." (Citation omitted; emphasis in original; internal quotation marks omitted.) Farnum v. Commissioner of Correction, 118 Conn. App. 670, 675, 984 A.2d 1126 (2009), cert. denied, 295 Conn. 905, 989 A.2d 119 (2010). "[A] successful petitioner must satisfy both prongs . . . [and the] failure to satisfy either . . . is fatal to a habeas petition." (Internal quotation marks omitted.) Saucier v. Commissioner of Correction, 139 Conn. App. 644, 650, 57 A.3d 399 (2012), cert. denied, 308 Conn. 907, 61 A.3d 530 (2013).

I

The petitioner first claims that his trial counsel rendered ineffective assistance in failing to advise him that his Alford plea to attempt to commit arson in the second degree would foreclose "any viable appeal" of his violation of probation conviction. In rejecting that claim, the court concluded that the petitioner had failed to demonstrate any prejudice resulting therefrom. We agree.

As our Supreme Court has explained, "under the test in Hill [v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)], in which the United States Supreme Court modified the prejudice prong of [Strickland] for claims of ineffective assistance when the conviction resulted from a guilty plea, the evidence must demonstrate that there is a reasonable probability that, but for counsel's errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial." (Internal quotation marks omitted.) Crawford v. Commissioner of Correction, 285 Conn. 585, 598, 940 A.2d 789 (2008). That standard governs the petitioner's claim.

The record reflects that, pursuant to his Alford plea, the petitioner received a sentence of eight years incarceration on the attempted arson charge, which sentence ran concurrently with his twelve year sentence for violation of probation. In its memorandum of decision, the habeas court noted that, at the time that plea was entered, the trial court "canvassed the Alford plea and twice specifically asked the petitioner if he was pleading guilty because of the favorable plea agreement. Bothtimes the petitioner acknowledged that the favorable disposition was his motivation for [entering] the Alford plea."² See State v. Reid, 277 Conn. 764, 784, 894 A.2d 963 (2006) (court may rely on responses made during plea canvass); Toles v. Commissioner of Correction, 113 Conn. App. 717, 727, 967 A.2d 576 (in evaluating ineffective assistance of counsel claim, habeas court entitled to rely on petitioner's responses to trial court during plea canvass), cert. denied, 293 Conn. 906, 978 A.2d 1114 (2009).

At the habeas trial, the petitioner presented only two witnesses—Sanchez and himself. Sanchez offered no testimony with respect to this claim. In his testimony, the petitioner acknowledged that "what convinced [him] to take the plea" was the risk of being sentenced to additional years of incarceration.³ Although the petitioner also alleged that he informed the trial court at the time of sentencing that he wanted a trial, that testimony...