Colon v. Commissioner of Correction ( 2017 )

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HECTOR COLON v. COMMISSIONER
OF CORRECTION
(AC 38688)
DiPentima, C. J., and Elgo and Kahn, Js.
Syllabus
The petitioner, who had been convicted of various crimes in connection
with two guilty pleas that he had entered in different cases, sought a
writ of habeas corpus, claiming that his trial counsel had rendered
ineffective assistance by failing to adequately explain the state’s plea
offer to him. The petitioner further claimed that his trial counsel ren-
dered ineffective assistance by failing to prepare him for and to attend
a meeting with law enforcement authorities, prior to sentencing on his
first guilty plea, for the purpose of the petitioner’s providing information
to the state in the hope of reducing his sentence. The petitioner received
a total effective sentence of twenty-seven and one-half years incarcera-
tion on both guilty pleas. The habeas court rendered judgment denying
the petition, concluding that the petitioner had failed to establish that
his trial counsel’s performance was deficient and that he was prejudiced
by counsel’s allegedly deficient performance. The habeas court 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 demonstrate a reasonable probability that but
for his trial counsel’s representation, he would have changed his guilty
pleas: the record demonstrated that the state had a strong case in both
cases against the petitioner, who faced a total exposure of 210 years
incarceration on the charges in both cases had he gone to trial, the
petitioner stated during his plea canvasses that he understood the man-
datory minimum and maximum sentences for each charge, and that he
agreed to the sentence of twenty-five to thirty years incarceration, he
did not demonstrate that he was prejudiced by his trial counsel’s failure
to oversee his cooperation with law enforcement, and the petitioner’s
bare allegation that he would have pleaded differently had he received
effective representation was insufficient to establish that he was prej-
udiced.
Argued September 13—officially released December 26, 2017
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.; thereafter, the
court dismissed the petition in part; judgment denying
the petition; subsequently, the court denied the petition
for certification to appeal, and the petitioner appealed
to this court. Appeal dismissed.
Peter G. Billings, assigned counsel, for the appel-
lant (petitioner).
Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, was Jo Anne Sulik, supervisory
assistant state’s attorney, for the appellee (respondent).
Opinion
KAHN, J. The petitioner, Hector Colon, appeals fol-
lowing the denial of his petition for certification to
appeal from the habeas court’s judgment denying his
petition for a writ of habeas corpus. On appeal, the
petitioner claims that the court improperly denied his
petition for certification to appeal after erroneously
concluding that his criminal trial counsel, Nicholas Car-
dwell, had not provided ineffective assistance.1 We con-
clude that the court did not abuse its discretion in
denying the petition for certification to appeal, and,
accordingly, we dismiss the appeal.
The following facts, as found by the habeas court
and reflected by the record, and procedural history
are relevant to this appeal. On October 27, 2008, while
represented by Cardwell, the petitioner pleaded guilty
to charges contained in four files in the judicial district
of Hartford (Hartford cases). Specifically, the petitioner
pleaded guilty to two counts of burglary in the first
degree in violation of General Statutes § 53a-101 (a)
(1), two counts of conspiracy to commit burglary in
the first degree in violation of General Statutes §§ 53a-
48 and 53a-101 (a) (1), two counts of robbery in the
first degree in violation of General Statutes § 53a-134 (a)
(2), one count of forgery in the first degree in violation
of General Statutes § 53a-138, and one count of the sale
of certain illegal drugs in violation of General Statutes
§ 21a-278 (b). If convicted of all of the original charges,
the petitioner would have faced a total exposure of 150
years in prison. Pursuant to the plea agreement, the
petitioner would receive a sentence of up to thirty years
incarceration but reserve the right to argue for a
reduced sentence of not less than twenty-five years.2
Prior to entering into that plea, the petitioner had con-
tacted and met with the police, outside the presence
of Cardwell, to provide them with information relating
to various criminal activities, in the hope of further
reducing his sentence. After entering his plea but before
sentencing, the petitioner discharged Cardwell as his
attorney. Attorney Aaron Romano then entered an
appearance on behalf of the petitioner to help him ‘‘get
a better result than what he anticipated getting with
Attorney Cardwell.’’
On June 9, 2009, while represented by Romano, the
petitioner pleaded guilty to additional charges, brought
in the judicial district of Middlesex, of robbery in the
first degree in violation of § 53a-134 (a) (2), burglary
in the first degree in violation of § 53a-101 (a) (1), and
kidnapping in the second degree with a firearm in viola-
tion of General Statutes §§ 53a-94a (a) and 53a-8 (Mid-
dletown case). The petitioner faced a maximum
sentence of sixty years in prison for those charges.
After accepting the petitioner’s pleas, the court trans-
ferred the case to Hartford for sentencing, with the
understanding that he would receive a sentence of
between twenty-five and thirty years, to be served con-
currently with the sentence imposed in the Hartford
cases. The court in Hartford thereafter imposed a total
effective sentence of twenty-seven and one-half years
in prison for the pleas entered in the Hartford and
Middletown cases.
Approximately six years later, the petitioner filed a
second amended petition for a writ of habeas corpus.
That petition alleged in relevant part that Cardwell had
provided ineffective assistance of counsel by failing (1)
to adequately explain the state’s plea offer to him; and
(2) to ‘‘prepare the petitioner for [and attend] a meeting
with law enforcement authorities, which was arranged
. . . for the purpose of [providing] information [to the
state] . . . thereby denying the petitioner the opportu-
nity to negotiate a more favorable sentencing scheme.’’3
Following a trial, the habeas court denied the petition.
In its memorandum of decision, the court found that
the petitioner failed to meet ‘‘his burden of showing
[by] a preponderance of the evidence that there was
any deficient performance on the part of Attorney Card-
well.’’ The court acknowledged that the petitioner had
agreed to serve a lengthy sentence but noted that his
‘‘conduct was such that he was exposed to a signifi-
cantly longer sentence had the cases all proceeded to
trial and had he been found guilty.’’ The court added
that ‘‘[a]lthough the petitioner attempted to trade his
knowledge of crimes that had been committed by other
individuals in exchange for a sentence modification, it
appears that that information was not deemed to be
valuable nor necessary by the prosecuting authorities.’’
Thus, the court concluded that, even if his counsel had
performed deficiently, the petitioner failed to demon-
strate that he was prejudiced by his attorneys’ conduct.
On November 10, 2015, the petitioner filed a petition
for certification to appeal, which the court denied. This
appeal followed. Additional facts and procedural his-
tory will be set forth as necessary.
On appeal, the petitioner claims that the court abused
its discretion in denying his petition for certification to
appeal from the judgment denying his habeas corpus
petition. He argues that the court erred in concluding
that Cardwell had not provided ineffective assistance
despite failing to adequately explain the state’s plea
offer and to oversee ‘‘the petitioner’s cooperation with
law enforcement . . . .’’ We disagree.
‘‘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,
he must demonstrate that the denial of his petition for
certification constituted an abuse of discretion. . . .
Second, if the petitioner can show an abuse of discre-
tion, he must then prove that the decision of the habeas
court should be reversed on its merits. . . .
‘‘To prove an abuse of discretion, the petitioner must
demonstrate that the [resolution of the underlying claim
involves issues that] are debatable among jurists of
reason; that a court could resolve the issues [in a differ-
ent manner]; or that the questions are adequate to
deserve encouragement to proceed further.’’ (Internal
quotation marks omitted.) Sotomayor v. Commissioner
of Correction, 135 Conn. App. 15, 20–21, 41 A.3d 333,
cert. denied, 305 Conn. 903, 43 A.3d 661 (2012).
‘‘[T]he governing legal principles in cases involving
claims of ineffective assistance of counsel arising in
connection with guilty pleas are set forth in Strickland
[v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984)] and Hill [v. Lockhart, 474 U.S. 52, 106
S. Ct. 366, 88 L. Ed. 2d 203 (1985)]. [According to]
Strickland, [an ineffective assistance of counsel] claim
must be supported by evidence establishing that (1)
counsel’s representation fell below an objective stan-
dard of reasonableness, and (2) counsel’s deficient per-
formance prejudiced the defense because there was a
reasonable probability that the outcome of the proceed-
ings would have been different had it not been for the
deficient performance. . . . Under . . . Hill . . .
which . . . modified the prejudice prong of the Strick-
land test 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. . . . In its analysis, a reviewing court may look
to the performance prong or to the prejudice prong,
and the petitioner’s failure to prove either is fatal to a
habeas petition.’’ (Emphasis in original; internal quota-
tion marks omitted.) Gudino v. Commissioner of Cor-
rection, 123 Conn. App. 719, 723–24, 3 A.3d 134 (2010).
We need not examine Cardwell’s representation
under the performance prong because the petitioner
has failed to demonstrate a reasonable probability that,
but for Cardwell’s representation, he would have
changed his pleas. See, e.g., Washington v. Commis-
sioner of Correction, 287 Conn. 792, 832–33, 950 A.2d
1220 (2008) (‘‘[i]t is well settled that [a] reviewing court
can find against a petitioner on either ground, which-
ever is easier’’ [emphasis in original; internal quotation
marks omitted]). With respect to the prejudice prong,
a petitioner ‘‘must make more than a bare allegation
that he would have pleaded differently and gone to trial
. . . .’’ (Internal quotation marks omitted.) Carraway
v. Commissioner of Correction, 144 Conn. App. 461,
473, 72 A.3d 426 (2013), appeal dismissed, 317 Conn.
594, 119 A.3d 1153 (2015).
‘‘Additionally, a petitioner’s assertion after he has
accepted a plea that he would have insisted on going
to trial suffers from obvious credibility problems and
must be evaluated in light of the circumstances [he]
would have faced at the time of his decision. . . . In
evaluating the credibility of such an assertion, the
strength of the state’s case is often the best evidence
of whether a defendant in fact would have changed his
plea and insisted on going to trial, in light of newly
discovered evidence or a defense strategy that was not
previously contemplated. . . . Likewise, the credibil-
ity of the petitioner’s after the fact insistence that he
would have gone to trial should be assessed in light of
the likely risks that pursuing that course would have
entailed.’’ (Citations omitted; internal quotation marks
omitted.) Id., 475–76.
Here, the petitioner alleges that but for ‘‘Cardwell’s
failure to fully explain the [plea] offer to [him], the
petitioner would not have accepted the plea bargain.’’
The following additional facts are relevant to this claim.
At the petitioner’s habeas trial, the petitioner intro-
duced into evidence a handwritten note with numbers
written at the bottom. Cardwell testified that he had
written the note to his associate, Attorney Matthew
Costello, and that Costello was to meet with the peti-
tioner and go over the note’s listed items but that the
numbers at the bottom of the note were not there when
Cardwell gave the note to Costello. Costello testified
that he believed that he had written the numbers and
that to the best of his recollection, they may have repre-
sented ‘‘how many years possibly [the petitioner would]
get if he cooperated subsequent to entering his plea.’’
The petitioner testified that this note and the accompa-
nying conversation with Costello had led him to believe
that accepting the plea agreement would result in a
sentence of twenty-five to thirty years, with the right
to argue for less than twenty-five years. He allegedly
had not understood that accepting the plea agreement
meant that he would serve twenty-five years in prison
at a minimum. Instead, he had expected a sentence of
eighteen years, of which he would serve fourteen years
in prison. According to the petitioner’s brief to this
court, ‘‘but for the petitioner’s understanding that he
would be sentenced to eighteen years and release[d]
after fourteen years, he would not have accepted the
proposed plea.’’ This bare allegation, however, is insuffi-
cient to demonstrate that Cardwell’s representation
prejudiced the petitioner, particularly when evaluated
in light of the circumstances of this case.
The record demonstrates that the state had a strong
case against the petitioner in each of the Hartford cases
as well as in the Middletown case. The charges brought
against him in two of the four Hartford cases stemmed
from two home invasions; the charges brought in the
other two cases stemmed from the petitioner’s posses-
sion of ‘‘numerous items associated with forged cur-
rency . . . [and] with the packaging and sale of
narcotics.’’ Police searches of the petitioner’s premises
revealed these items in addition to a television that had
been stolen from one of the burglarized houses. As
the prosecutor indicated during the petitioner’s plea
hearing, the petitioner had admitted his involvement in
the two home invasions and in forging ‘‘approximately
fifteen thousand dollars a week.’’ Similarly, regarding
the Middletown case, the police searched the petition-
er’s house and found a ring that had been stolen from
the burglarized house. When the police interviewed the
petitioner, he admitted his involvement in several home
invasions. He stated that he had visited the house that
had been burglarized in this case but denied taking part
in the crime itself. Nevertheless, two of the men who
admitted their involvement in the incident identified
the petitioner as also having taken part in the crime.
As the habeas court noted in its memorandum of
decision, in light of the evidence against the petitioner
and the risks he would have faced had he insisted on
going to trial, his ‘‘decision to enter into a plea
agreement with the state was prudent. . . . Had there
been trials on all of the charges, it is likely that, in the
event of conviction, the petitioner would never have
left the custody of the [respondent, the] Commissioner
of Correction.’’ Had the petitioner gone to trial instead
of pleading guilty, he would have faced a total exposure
of 150 years in prison on the charges brought in the
Hartford cases and sixty years in prison on the charges
brought in the Middletown case. Instead, by accepting
the state’s plea offer, he faced a maximum of thirty
years in prison, with his attorney retaining the right to
argue for as little as twenty-five years.
Additionally, prior to accepting the petitioner’s pleas
in the Hartford and Middletown cases, the judge presid-
ing over each case conducted a plea canvass. Each
judge recited the elements of each offense charged and
the mandatory minimum and maximum sentences for
each charge, which the petitioner said he understood.
At the plea hearing in the Hartford cases, the court
explained to the petitioner that ‘‘the agreement that is
proposed here calls for you to receive a total sentence
of thirty years in prison, with your lawyer reserving the
right to argue that the sentence should be less than that
but the understanding being that under no circum-
stances can the total effective sentence be less than
twenty-five years. So, the sentence will be between
twenty-five and thirty years in prison as a total effective
sentence to be reached or arrived at in whatever way
the court deems appropriate.’’ When asked whether he
had agreed to this arrangement, the petitioner
responded, ‘‘[y]es.’’ Similarly, during the plea canvass
in the Middletown case, the court asked whether the
petitioner understood that the sentence would run con-
currently with the sentence imposed in the Hartford
cases, which would be ‘‘between twenty-five to thirty
years,’’ and the petitioner stated that he understood
that. Thus, any argument that he would have pleaded
not guilty and insisted on going to trial had he under-
stood the plea agreement is unavailing.
Similarly, the petitioner has not demonstrated that
he was prejudiced by Cardwell’s failure to oversee the
petitioner’s cooperation with law enforcement. As the
respondent argues in his brief to this court, the habeas
court’s determination that Cardwell’s representation
did not prejudice the petitioner ‘‘applies with equal
force’’ to this aspect of Cardwell’s representation. The
strength of the state’s case, the likely risks of going
to trial, and the petitioner’s responses during the plea
canvass demonstrate that Cardwell’s representation
during the petitioner’s cooperation with law enforce-
ment did not prejudice the petitioner. The petitioner’s
bare allegation that he would have pleaded differently
had he received effective representation is insufficient
to satisfy the prejudice prong.
The petitioner has not demonstrated that the issues
that he raised on appeal are debatable among jurists
of reason, that the court could resolve the issues in a
different manner, or that the questions raised deserve
encouragement to proceed further. We conclude, there-
fore, that the habeas court did not abuse its discretion
in denying the petition for certification to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The court also concluded that Aaron Romano, who served as the petition-
er’s criminal trial counsel at a later stage of the criminal proceedings, had
not provided ineffective assistance because the petitioner’s plea of guilty
to kidnapping was not improvident under the holding of State v. Salamon,
287 Conn. 509, 949 A.2d 1092 (2008). On appeal, the petitioner does not
challenge that determination.
2
The agreement also provided that if the petitioner chose to plead guilty
to charges brought in a case separately pending in the judicial district of
Danbury, any sentence imposed there would not increase the sentence
imposed in the Hartford cases.
3
The petitioner also alleged that Romano had provided ineffective assis-
tance of counsel by failing ‘‘to move to withdraw the petitioner’s plea to
the charge of kidnapping in the second degree with a firearm in violation
of [General Statutes §] 53a-94a despite the fact that the acts which gave
rise to the kidnapping charge were ‘merely incidental’ to the other crimes
with which the petitioner had been charged.’’ See State v. Salamon, 287
Conn. 509, 542, 949 A.2d 1092 (2008). The court found that ‘‘the recitation
of facts by the state’s attorney during the guilty plea canvass’’ demonstrated
that the petitioner ‘‘clearly committed the independent crime of kidnapping’’
and that therefore ‘‘[a]ny argument under Salamon is . . . baseless and
unavailing.’’