Silver v. Commissioner of Correction , 180 Conn. App. 592 ( 2018 )

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MARK SILVER v. COMMISSIONER OF CORRECTION
(AC 39238)
Keller, Bright and Pellegrino, Js.
Syllabus
The petitioner, who had been convicted of the crimes of attempt to commit
murder and assault in the first degree, sought a writ of habeas corpus,
claiming that his trial counsel had provided ineffective assistance. The
habeas court rendered judgment denying the habeas petition and, there-
after, denied the petition for certification to appeal, and the petitioner
appealed to this court. Held that the habeas court did not abuse its
discretion in denying the petition for certification to appeal, the peti-
tioner having failed to establish that the issues he raised were debatable
among jurists of reason, that a court could have resolved the issues in
a different manner or that the questions raised were adequate to deserve
encouragement to proceed further; although the petitioner alleged that
his trial counsel had failed to adequately advise him regarding a possible
plea agreement with the state, the habeas court credited the testimony
of his trial counsel that there never was a formal plea offer from the
state and that the state had agreed only to bring a proposal to the
victim’s family for consideration if the petitioner approached the state
with a proposal that included a sentence of twenty years incarceration,
and even if the state had made a formal offer of twenty years incarcera-
tion, the petitioner failed to sustain his burden of demonstrating that
his counsel’s performance was deficient, as the testimony of his counsel,
which the court credited, demonstrated that counsel adequately apprised
the petitioner of the advisability of a plea deal with the state, correctly
informed the petitioner of his exposure on the charges he was facing
and of his exposure if the victim died, fully discussed with him the
evidence that would be presented at trial and the strengths and weak-
nesses of the state’s case, and urged the petitioner to authorize a request
for a plea deal proposing a sentence of twenty years, but that the
petitioner repeatedly refused to consider such a sentence and insisted
on going to trial.
Argued January 2—officially released March 27, 2018
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district
of Tolland and tried to the court, Fuger, J.; judgment
denying the petition; thereafter, the court denied the
petition for certification to appeal, and the petitioner
appealed to this court. Appeal dismissed.
Andrew P. O’Shea, for the appellant (petitioner).
Margaret Gaffney Radionovas, senior assistant
state’s attorney, with whom, on the brief, were John
C. Smriga, state’s attorney, and Emily Dewey Trudeau,
deputy assistant state’s attorney, for the appellee
(respondent).
Opinion
BRIGHT, J. The petitioner, Mark Silver, appeals fol-
lowing the denial of his petition for certification to
appeal from the judgment of the habeas court denying
his amended petition for a writ of habeas corpus, in
which he alleged ineffective assistance on the part of
his trial counsel in advising him concerning a possible
plea deal. The dispositive issue is whether the habeas
court abused its discretion in denying the petition for
certification to appeal. We conclude that the habeas
court properly denied certification, and we, therefore,
dismiss the appeal.
The following facts inform our review. ‘‘In a two
count substitute information filed August 8, 2008, the
state charged the [petitioner] . . . with attempt to
commit murder in violation of General Statutes §§ 53a-
49 and 53a-54a (a), and assault in the first degree in
violation of General Statutes § [53a-59 (a) (1)]. After a
jury trial, the [petitioner] was found guilty on both
counts and sentenced by the court to a total effective
term of forty years incarceration.’’ (Footnote omitted.)
State v. Silver, 126 Conn. App. 522, 525, 12 A.3d 1014,
cert. denied, 300 Conn. 931, 17 A.3d 68 (2011). The
judgment of conviction was affirmed by this court on
direct appeal. Id., 539.
On December 21, 2015, the petitioner filed an
amended petition for a writ of habeas corpus, alleging
ineffective assistance of trial counsel, namely, Attor-
neys Barry Butler and William Schipul.1 The petitioner
alleged, in relevant part, that his trial counsel had ‘‘failed
to adequately advise [him] regarding pursuing a plea
agreement with the state . . . and . . . they failed to
adequately pursue a plea bargain for [him].’’2 Following
an April 26, 2016 trial on the merits of the petition, the
habeas court denied the petition after concluding that
the petitioner had failed to satisfy his burden of proof
that counsel had provided ineffective assistance.
Specifically, the habeas court credited the testimony
of Attorneys Butler and Schipul, and found that their
testimony was more credible than that of the petitioner.
The court also found that there never was a formal plea
offer from the state, but that the state only had agreed
to bring a proposal to the victim’s family for consider-
ation if the petitioner approached the state with a pro-
posal of a sentence of twenty years incarceration; the
petitioner, however, refused to consider such a sen-
tence. The court further found that even if it were to
assume that the state had made a formal offer of twenty
years incarceration, it was clear that Butler and Schipul
had complied with their constitutional duties to advise
and explain the offer to the petitioner and that the
petitioner had made the decision not to entertain such
an offer. The court, therefore, denied the petition for
a writ of habeas corpus. Thereafter, the petitioner filed
a petition for certification to appeal from the habeas
court’s judgment. The court denied the petition for certi-
fication to appeal on May 10, 2016. The petitioner now
appeals from the judgment denying his petition for certi-
fication to appeal. Additional facts will be set forth
as necessary.
‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the dismissal of his petition for habeas corpus
only by satisfying the two-pronged test enunciated by
our Supreme Court in Simms v. Warden, 229 Conn.
178, 640 A.2d 601 (1994), and adopted in Simms v.
Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First,
[the petitioner] must demonstrate that the denial of
his petition for certification constituted an abuse of
discretion. . . . Second, if the petitioner can show an
abuse of discretion, he must then prove that the deci-
sion of the habeas court should be reversed on the
merits. . . . To prove that the denial of his petition for
certification to appeal constituted an abuse of discre-
tion, the petitioner must demonstrate that the [resolu-
tion of the underlying claim involves issues that] are
debatable among jurists of reason; that a court could
resolve the issues [in a different manner]; or that the
questions are adequate to deserve encouragement to
proceed further. . . .
‘‘In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous. In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining whether those claims satisfy one or more
of the three criteria . . . adopted by [our Supreme
Court] for determining the propriety of the habeas
court’s denial of the petition for certification.’’ (Cita-
tions omitted; internal quotation marks omitted.) Sand-
ers v. Commissioner of Correction, 169 Conn. App. 813,
821–22, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904,
156 A.3d 536 (2017).
The petitioner claims that the habeas court abused
its discretion in denying his petition for certification to
appeal because there is merit to his underlying claim
that trial counsel provided ineffective assistance by fail-
ing to provide constitutionally adequate advice during
plea negotiations. We are not persuaded.
We set forth the legal principles and the standard of
review that guide our analysis. ‘‘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. . . . Although a chal-
lenge 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.’’ (Citations omitted;
internal quotation marks omitted.) Duncan v. Commis-
sioner of Correction, 171 Conn. App. 635, 646–47, 157
A.3d 1169, cert. denied, 325 Conn. 923, 159 A.3d 1172
(2017). ‘‘As enunciated in Strickland v. Washington,
[466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984)] . . . [i]t 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 peti-
tioner must demonstrate that his attorney’s representa-
tion was not reasonably competent or within the range
of competence displayed by lawyers with ordinary train-
ing and skill in the criminal law.’’ (Internal quotation
marks omitted.) Thomas v. Commissioner of Correc-
tion, 141 Conn. App. 465, 471, 62 A.3d 534, cert. denied,
308 Conn. 939, 66 A.3d 881 (2013).
‘‘To show prejudice from ineffective assistance of
counsel where a plea offer has lapsed or been rejected
because of counsel’s deficient performance, defendants
must demonstrate a reasonable probability they would
have accepted the earlier plea offer had they been
afforded effective assistance of counsel. Defendants
must also demonstrate a reasonable probability the plea
would have been entered without the prosecution can-
celing it or the trial court refusing to accept it, if they
had the authority to exercise that discretion under state
law. To establish prejudice in this instance, it is neces-
sary to show a reasonable probability that the end result
of the criminal process would have been more favorable
by reason of a plea to a lesser charge or a sentence of
less prison time. Missouri v. Frye, 566 U.S. 134, 147,
132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012); see also Padilla
v. Kentucky, 559 U.S. 356, 364, 130 S. Ct. 1473, 176 L.
Ed. 2d 284 (2010) . . . .’’ (Internal quotation marks
omitted.) Kellman v. Commissioner of Correction, 178
Conn. App. 63, 71, 174 A.3d 206 (2017). The court, how-
ever, ‘‘can find against a petitioner . . . on either the
performance prong or the prejudice prong, whichever is
easier.’’ Thomas v. Commissioner of Correction, supra,
141 Conn. App. 471. In the present case, the habeas
court determined that the petitioner had failed to estab-
lish that counsel’s performance was deficient; the court
also determined that there had been no plea offer from
the state.
The petitioner claims that the habeas court erred in
determining that he had failed to establish that trial
counsel had provided inadequate advice during plea
negotiations. Specifically, the petitioner argues: ‘‘Attor-
ney Schipul and Attorney [Butler] failed to adequately
advise the petitioner such that he could make an
informed choice regarding the state’s offer of twenty
years. Had they accurately informed the petitioner
regarding the vast punishment he was exposed to by
going to trial and the likelihood of a lengthy sentence
being imposed, the petitioner would have accepted the
state’s offer and he would have received a sentence
substantially less than the forty year sentence imposed
after trial.’’ Although the petitioner concedes that coun-
sel’s credited testimony ‘‘reflects that they informed
the petitioner of the state’s offer and recommended
multiple times that he accept it,’’ he argues that counsel,
nevertheless, ‘‘did not adequately advise the petitioner
regarding why the offer should be accepted.’’ (Empha-
sis in original.)
The petitioner also specifically argues that ‘‘Butler
failed to even review the state’s evidence in conjunction
with the elements of the charged crimes to explain why
the state’s case was strong3 . . . .’’ (Footnote added.)
He also contends that ‘‘both attorneys gave the peti-
tioner affirmatively incorrect advice regarding his total
exposure if he proceeded to trial. Attorney Schipul
accurately informed the petitioner that he was exposed
to five to forty years of incarceration under the . . .
charges of attempted murder and assault in the first
degree. However, he failed to adequately advise the
petitioner that, if the victim died and he was charged
with murder instead of attempted murder, that would
increase his exposure to twenty-five to eighty years.
Similarly, Attorney Butler’s advice that the petitioner
was exposed to twenty-five to sixty years if the victim
passed away from his injuries was also affirmatively
incorrect, as he apparently failed to account for the
additional twenty years stemming from the assault in
the first degree charge.’’4
The petitioner contends that counsel’s overall advice
was incorrect and incomplete, and that it fell short
of objective standards for counseling regarding plea
offers.5 We are not persuaded. Indeed, even if we
assume, as did the habeas court, that the state made a
plea offer when it indicated to the petitioner that it
would bring a plea proposal to the victim’s family for
consideration only if the petitioner approached the state
and agreed to serve a twenty year term of incarceration,
we, nevertheless, agree with the habeas court’s conclu-
sion that the petitioner has failed to establish that coun-
sel’s performance was deficient.
‘‘Prior to trial an accused is entitled to rely upon his
counsel to make an independent examination of the
facts, circumstances, pleadings and laws involved and
then to offer his informed opinion as to what plea should
be entered. Determining whether an accused is guilty
or innocent of the charges in a complex legal indictment
is seldom a simple and easy task for a layman, even
though acutely intelligent. . . . A defense lawyer in a
criminal case has the duty to advise his client fully on
whether a particular plea to a charge appears to be
desirable. . . .
‘‘On the one hand, defense counsel must give the
client the benefit of counsel’s professional advice on
this crucial decision of whether to plead guilty. . . .
As part of this advice, counsel must communicate to
the defendant the terms of the plea offer . . . and
should usually inform the defendant of the strengths
and weaknesses of the case against him, as well as the
alternative sentences to which he will most likely be
exposed. . . . On the other hand, the ultimate decision
whether to plead guilty must be made by the defendant.
. . . And a lawyer must take care not to coerce a client
into either accepting or rejecting a plea offer. . . .
Counsel’s conclusion as to how best to advise a client
in order to avoid, on the one hand, failing to give advice
and, on the other, coercing a plea enjoys a wide range
of reasonableness because [r]epresentation is an art
. . . and [t]here are countless ways to provide effective
assistance in any given case . . . . Counsel rendering
advice in this critical area may take into account, among
other factors, the defendant’s chances of prevailing at
trial, the likely disparity in sentencing after a full trial
as compared to a guilty plea (whether or not accompa-
nied by an agreement with the government), whether
defendant has maintained his innocence, and the defen-
dant’s comprehension of the various factors that will
inform his plea decision.’’ (Citations omitted; emphasis
omitted; internal quotation marks omitted.) Vazquez
v. Commissioner of Correction, 123 Conn. App. 424,
437–38, 1 A.3d 1242 (2010), cert. denied, 302 Conn. 901,
23 A.3d 1241 (2011); see also Sanders v. Commissioner
of Correction, supra, 169 Conn. App. 830–31.
In the present case, after listening to and viewing the
evidence presented at the habeas trial, the habeas court
credited the testimony of both Butler and Schipul, and it
found that they had provided constitutionally adequate
advice regarding the state’s indication that it would
bring to the victim’s family and consider a twenty year
term of incarceration if the petitioner made such a
proposal.
The record reveals that Butler testified in relevant
part that he thought the case against the petitioner was
fairly strong and that the petitioner likely would not
prevail. He testified that the state initially was reluctant
to engage in plea negotiations because the victim’s injur-
ies were so severe and life threatening that it thought a
murder charge might be brought against the petitioner.
Butler stated that he persisted in trying to resolve the
case, and that he succeeded in getting the state to agree
to consider a resolution, but that the state was firm in
its position that it would talk to the victim’s family only
if the petitioner would approach the state about a deal
that included at least a twenty year term of incarcera-
tion. Butler stated that he repeatedly broached this with
the petitioner, but that the petitioner ‘‘was not inter-
ested in any twenty year sentence’’ or even in a fifteen
year sentence. Butler testified that ‘‘[o]ne of the things
that [the petitioner] said to me was the most he had
ever done was eighteen months, and he sure as hell
wasn’t going to be taking any twenty years.’’ Butler
testified that he advised the petitioner that ‘‘the state
had a strong case, that we were exposed to fifty to sixty
years with the victim’s injuries if he did die and we
faced [a] murder [charge]’’ and that the petitioner
should ‘‘settle the case.’’ Butler always recommended
that the petitioner ‘‘tak[e] the twenty as opposed to
a trial.’’
Schipul testified that he reviewed Butler’s notes, the
state’s evidence, the disclosures, and the investigators’
reports after he took over the petitioner’s defense. After
such review, Schipul thought the case against the peti-
tioner was strong. He learned from Butler’s notes that
the state might be willing to present a twenty year deal
to the victim’s family if the petitioner first agreed to it,
but that no formal offer had been made or would be
made by the state unless the petitioner brought an offer
to the state that included a twenty year term of incarcer-
ation. Schipul also testified that the possibility of a
deal was discussed in court chambers, and, after such
discussion, Schipul believed that the state was ‘‘solid
. . . like [a] wall’’ that would not budge about the peti-
tioner serving at least twenty years. He also testified
that the state was not willing to make an offer to the
petitioner, and that he had to be the one to bring any
offer to the state, but that he could do so only if the
petitioner first were to agree to a twenty year term of
incarceration; the state was not willing to bring any
potential offer to the very involved family of the victim
unless the petitioner were to approach the state with
an offer that he would serve twenty years. Schipul
‘‘understood . . . that it wasn’t ever going to get any
better than twenty years.’’
When Schipul brought this possibility to the peti-
tioner on several occasions, the petitioner was not inter-
ested and ‘‘thought twenty years was way too much.’’
Schipul stated: ‘‘It got repetitive after a while, and I
[knew] the [petitioner] wasn’t happy about me bringing
it up every time I saw him, so basically, it was—I’d
bring it up occasionally after it was clear to me that [the
petitioner] had no intention of taking twenty years.’’
Schipul also testified that he went over the evidence
with the petitioner, including the vehicle, the descrip-
tion of the perpetrator, and the petitioner’s confession.
He also stated that the petitioner had copies of the
discovery and the police reports. Schipul discussed the
strengths and weaknesses of the case, and he told the
petitioner that the case was not worth taking to trial,
and that the petitioner should enter into a plea
agreement. He testified that he explained to the peti-
tioner ‘‘the advantages of taking a plea bargain versus
going to trial and being exposed to forty years incarcera-
tion, and a possible murder prosecution in the future.’’
Schipul stated that the petitioner told him that a twenty
year sentence was not an option, even if the state would
agree not to prosecute him for murder in the event the
victim died. Schipul repeatedly told the petitioner, even
during the trial, that he believed the petitioner should
accept the twenty year proposal, but the petitioner
wanted to continue with the trial. The petitioner argues
that Schipul’s strong recommendations were insuffi-
cient in light of the fact that he gave the petitioner false
hope of an acquittal by telling the petitioner that he
might have a defense based on the fact that no witness
had identified the petitioner as the driver of the vehicle
that ran over the victim. Schipul’s discussion with the
petitioner of this theory of defense, however, hardly
can be seen as encouragement to the petitioner that he
try the case given the repeated advice to the petitioner
that the state had a strong case, he should accept a
plea bargain, and he should not go to trial.
We conclude that the testimony of counsel, which
the habeas court credited, demonstrates that counsel
adequately apprised the petitioner of the advisability
of a plea deal with the state. Schipul correctly informed
the petitioner of his exposure on the charges he was
facing. Butler correctly informed him of his exposure
if the victim died. Schipul fully discussed with the peti-
tioner the evidence that would be presented at trial
and the strengths and weaknesses of the case. He also
reviewed with the petitioner the applicable statutes.
Both Butler and Schipul told the petitioner that the
state had a very strong case and urged him to authorize
them to inform the state that the petitioner would
accept a sentence of twenty years. Despite all of coun-
sel’s efforts and advice, the petitioner simply was not
interested in a deal that required a long prison sentence;
he was informed and chose to go to trial.
Accordingly, after a thorough review of the record,
we conclude that the habeas court properly concluded
that the petitioner failed to sustain his burden of demon-
strating that his trial counsel rendered ineffective assis-
tance. The petitioner failed to establish that the issues
he raised are debatable among jurists of reason, that a
court could resolve them in a different manner or that
the questions he raised are adequate to deserve encour-
agement to proceed further. See Sanders v. Commis-
sioner of Correction, supra, 169 Conn. App. 821. We
conclude, therefore, that the habeas court did not abuse
its discretion in denying the petition for certification
to appeal from the judgment denying his amended peti-
tion for a writ of habeas corpus.
The appeal is dismissed.
In this opinion the other judges concurred.
1
Butler represented the defendant for only a few months before accepting
a position in a different judicial district. Schipul was appointed to replace
Butler as the defendant’s attorney thereafter. The petitioner does not make
separate claims of ineffective assistance against each attorney, but, rather,
alleges that counsel’s collective overall representation was ineffective.
2
The petitioner had alleged a second count in his petition, which he
withdrew with prejudice before the habeas hearing.
3
The respondent, the Commissioner of Correction, contends that this
claim was not specifically raised in the habeas petition, that Butler was not
asked about this during the habeas trial, and that the habeas court, therefore,
did not address it. We agree with the respondent. We also note that the
petitioner failed to address this in his pretrial habeas brief. Furthermore,
the petitioner does not argue in his brief that Schipul failed to address the
elements of the crime, and we conclude that such an argument would be
inconsistent with Schipul’s testimony that he discussed with the petitioner
the evidence and the strength and weaknesses of the state’s case. The
petitioner also specifically testified during the habeas trial that he had looked
at the statutes addressing the crimes he was alleged to have committed and
that Schipul had to explain them to him, particularly ‘‘that attempted murder
was a compound statute that is combined with murder and attempt together.’’
Accordingly, this belies any claim that counsel had not addressed the ele-
ments of the crime with the petitioner.
4
The petitioner incorrectly alleged that, if the victim had died, his total
exposure would have been eighty years. He is correct that his maximum
exposure for intentional murder, pursuant to § 53a-54a, would have been
sixty years, but he fails to recognize that he could not have been exposed
to a separate sentence of twenty years for intentional assault in the first
degree, pursuant to § 53a-59 (a) (1), involving the same victim and the
same conduct.
5
The petitioner also argues that counsel never counseled him on all the
additional charges that the state might have been able to bring against him
via an amended information. When asked during oral argument before this
court for any case law that would support his contention that counsel has
a responsibility to advise a client regarding every possible charge that could
be brought via a hypothetical amendment to an information, when the state
never indicated that it was considering additional charges, the petitioner
admitted that he was aware of none. We are not inclined to impose a new
onerous requirement on counsel on the basis of an unsupported argument
for which the petitioner provides no analysis or legal basis to do so, particu-
larly when the petitioner submitted no evidence whatsoever that the state
ever communicated an intent to charge the petitioner with the additional
hypothetical crimes.