Perez v. Commissioner of Correction ( 2014 )

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LUIS PEREZ v. COMMISSIONER OF CORRECTION
(AC 35332)
Gruendel, Sheldon and Schaller, Js.
Argued March 10—officially released May 20, 2014
(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
Mary H. Trainer, assigned counsel, for the appel-
lant (petitioner).
Leonard C. Boyle, deputy chief state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Eva B. Lenczewski, supervisory assistant
state’s attorney, for the appellee (respondent).
Opinion
GRUENDEL, J. The petitioner, Luis Perez, appeals
following the habeas court granting his petition for cer-
tification to appeal from its judgment denying his
amended petition for a writ of habeas corpus. On
appeal, the petitioner claims that the court erred in
denying his claims of ineffective assistance of counsel
with respect to (1) his violation of probation hearing
and (2) his Alford1 plea. We affirm the judgment of the
habeas court.
The following factual and procedural history as set
forth by the court in its memorandum of decision is
relevant to this appeal. ‘‘On May 25, 2006, the trial court
. . . sentenced the petitioner to ten . . . years incar-
ceration suspended after three and one-half . . . years,
followed by three . . . years probation on the charge
of attempted assault in the first degree. On November
7 and 19, 2008, the [petitioner] read and signed the
standard and special conditions of his probation. One
of the standard conditions of the petitioner’s probation
was that he not violate any law of this state or the
United States. After serving the prison portion of this
sentence, on November 19, 2008, the petitioner was
released and began to serve the probationary portion
of his sentence.
‘‘Approximately two months later, on January 6, 2009,
the petitioner was arrested and charged with burglary
in the first degree in violation of General Statutes § 53a-
101, assault in the third degree in violation of General
Statutes § 53a-61, threatening in the second degree in
violation of General Statutes § 53a-62, and harassment
in the first degree in violation of General Statutes § 53a-
102b. The 2009 arrest stemmed from an incident that
occurred on December 18, 2008, at the residence of
the petitioner’s cousin, Cyneice Cruz-Soto, the victim.
According to the victim, on that date, she and her sister,
Christine Soto, had an argument on the telephone. Later
that evening, the victim’s sister and the petitioner went
to the victim’s residence to confront her, knocked on
the door, and then the petitioner kicked in the door.
The petitioner and Soto then entered the victim’s resi-
dence and assaulted her by kicking and punching her
in the face and stomach. Soto was arrested that evening
and the petitioner was arrested on January 9, 2009, by
warrant. On March 4, 2009, the state filed a part B
information charging the petitioner with being a persis-
tent dangerous felony offender in violation of General
Statutes § 53a-40 (a) on the basis that he had been
previously convicted of criminal attempt at assault in
the first degree, a felony, and served a sentence of more
than one year.
‘‘Based on the January, 2009 arrest, on March 4, 2009,
the petitioner was arrested by warrant and charged
with violating the terms of his probation on the 2006
sentence. . . . [He] . . . hired Attorney Andrea
Anderson to represent him on both files. When Ander-
son received the files from the public defender, she
learned that a part B information had been filed by the
state. . . . Attorney Anderson . . . discussed the part
B information with the petitioner when she appeared in
the case and believed that he understood that additional
charge and its legal ramifications.
‘‘Plea negotiations between the state and . . . Attor-
ney Anderson [resulted in an] offer on both files of ten
years . . . with no special parole. Attorney Anderson
explained to the petitioner that if he rejected the ten
year plea offer, the court would schedule the [violation
of probation charge] for a hearing and [that he] could
receive six and one-half years to serve. At the time, the
petitioner’s exposure on both files was approximately
forty-six years, which Anderson explained to the peti-
tioner. The petitioner rejected the ten year offer, and
opted for a hearing on the [violation of probation
charge].
‘‘Attorney Anderson contacted Attorney David Feliu
and asked him to assist her in trying the violation of
probation because he had more criminal trial experi-
ence. Both Attorney Anderson and Attorney Feliu pre-
pared extensively for the hearing. Attorney Anderson
employed an investigator, met with the petitioner and
numerous witnesses, went to the scene of the incident
and reviewed all of the police reports, witness state-
ments, photographs and medical reports. When Feliu
appeared in the case, he reviewed Anderson’s entire
file, including her notes of interviews, witness state-
ments, and police reports. Feliu was lead counsel during
the hearing and believed that he was prepared for
the hearing.
‘‘On August 27, 2009, the trial court conducted the
hearing on the [violation of probation] charge. During
the adjudication stage of the hearing to determine if
the petitioner had violated his probation by violating
any law of this state by his conduct on December 18,
[2008] the state offered the testimony of the petitioner’s
probation officer, Matthew Generali, the victim, and
one of the responding police officers, Hallock Yocher.
The petitioner’s trial counsel cross-examined each of
these witnesses. Through his cross-examination of the
victim, Attorney Feliu brought out a number of inconsis-
tencies in her statements, that she had a diagnosis of
bipolar disorder, that she did not get along with her
sister and that her family did not favor her relationship
with her boyfriend. During his cross-examination of
Officer Yocher, Attorney Feliu again brought out incon-
sistencies in the victim’s statements.
‘‘The petitioner offered testimony from the victim’s
mother, Isabel Cole, her aunt, Maribell Sarvis, and the
victim’s sister, and the petitioner’s codefendant. Neither
the victim’s mother nor her aunt were present at the
victim’s residence on December 18, 2008, and therefore
could not offer any firsthand accounts of the incident.
They were offered as character witnesses as to the
victim’s reputation for untruthfulness, as well as the
family disharmony. Soto testified to her version of
events that the victim opened the door when she and
the petitioner arrived, that they did not go in the house
and that Soto and the victim had a physical altercation
and that the petitioner was there but not involved in
the fight. She testified that she brought the petitioner
with her because she was afraid of the victim’s boy-
friend. Both of the petitioner’s trial attorneys testified
at the habeas trial that the petitioner’s witnesses did
not come across well in court.
‘‘The state’s attorney and the petitioner’s counsel
both made closing arguments at the conclusion of the
evidentiary hearing. Attorney Feliu summed up the peti-
tioner’s theory of the case, the contradictions in the
state’s case and the victim’s version of events, and
argued that Soto was the more credible witness.
‘‘After hearing all of the evidence, the trial court deter-
mined that the state had proven by a fair preponderance
of the evidence that the petitioner had violated his pro-
bation. In its oral decision, the trial court found that
‘what this really comes down to is a credibility question.’
The court noted certain inconsistencies in the victim’s
statements, but found her testimony consistent in that
the petitioner arrived at her home with her sister, kicked
in her door and assaulted her. The trial court also found
that the victim’s testimony was corroborated by Officer
Yocher’s testimony. With respect to the petitioner’s wit-
nesses, who were all related [to] him, the court pointed
out that they all had a motive to protect the peti-
tioner. . . .
‘‘After the petitioner was sentenced on the [violation
of probation charge], he began doing ‘dead’ time2 on
the remaining charges. The petitioner’s exposure on the
remaining charges was approximately forty years. The
state and Anderson resumed plea negotiations in an
attempt to resolve the remaining charges. The court
offered the petitioner ten . . . years incarceration to
be served concurrent with the sentence he received on
the probation violation and jail credit back to his arrest
on January 6, 2009. Attorney Anderson told the peti-
tioner that if he did not accept the plea offer of ten
years concurrent, he faced a possible sentence of forty
years on the remaining charges. She explained the
charges and gave him copies of the relevant statutes.
Although Attorney Anderson did not give the petitioner
a copy of General Statutes § 53a-40 (a), the persistent
felony offender statute, the court finds that Attorney
Anderson explained this charge and its legal ramifica-
tions to the petitioner.
‘‘On September 17, 2009, the petitioner accepted the
offer and pleaded guilty under the Alford doctrine to
burglary in the first degree, assault in the third degree
and being a persistent dangerous felony offender. This
charge was read to the petitioner outside of the court’s
presence prior to his plea. The trial court’s canvass of
the petitioner included questions regarding the persis-
tent felony offender charge, to which the petitioner
responded that he understood.’’
On December 2, 2009, the petitioner brought this
petition for a writ of habeas corpus. The habeas court
denied his petition, finding that the petitioner did not
satisfy his burden with respect to the ineffective assis-
tance of counsel claims. After the court granted the
petition for certification to appeal, the petitioner filed
the present appeal.
‘‘We begin with the applicable standard of review
and the law governing ineffective assistance of counsel
claims. 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 assis-
tance 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, 555
U.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 preju-
diced the defense [by establishing a reasonable proba-
bility that, but for the counsel’s mistakes, the result of
the proceeding would have been different]. . . . Fur-
thermore, [i]n a habeas corpus proceeding, the petition-
er’s burden of proving that a fundamental unfairness
had been done 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,
Anderson and Feliu, both were ineffective in handling
his violation of probation hearing. Specifically, he
claims that his attorneys failed to (1) prepare adequately
for the hearing, (2) articulate a theory of the defense, (3)
cross-examine the victim sufficiently, and (4) produce
evidence that the door was not damaged, as described
by the victim. We do not agree.
Rather, we agree with the habeas court’s conclusion
that the petitioner failed to prove prejudice under
Strickland. ‘‘To satisfy the prejudice prong, a claimant
must demonstrate that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.’’ (Internal
quotation marks omitted.) Small v. Commissioner of
Correction, supra, 286 Conn. 713.
In his brief, the petitioner identifies all of the actions
or inactions by his counsel that allegedly constitute
deficient representation. What the petitioner has failed
to do, however, is demonstrate how these alleged defi-
ciencies prejudiced him in a way that would have
altered the outcome of the probation violation hearing.
The petitioner is required to demonstrate that, but for
his counsel’s ineffective assistance, there is a reason-
able probability that the court would not have revoked
his probation or sentenced him to a period of six years
to serve. He has not satisfied this standard through
argument in his appellate brief or through examination
of witnesses at the habeas trial. In his brief he states
that ‘‘[h]ad Attorneys Anderson and Feliu presented the
strong case that was available to them at the time of
the [violation of probation] hearing, the outcome clearly
would have been different.’’ This blanket statement
does not satisfy the standard for demonstrating
prejudice.
Furthermore, at the habeas trial, the petitioner called
various people to testify, including Anderson, Feliu, the
victim, the victim’s landlord, and the victim’s boyfriend.
Our review of the record reveals that the petitioner has
not demonstrated by a reasonable probability that the
outcome would have been different had his counsel’s
alleged ineffectiveness not occurred. We concur with
the court’s finding that ‘‘the attorneys thoroughly inves-
tigated the case, prepared for the hearing, prepared
their witnesses and provided and explained their theory
of the defense during cross-examination of the wit-
nesses and in Attorney Feliu’s closing argument.’’ The
habeas court also properly noted that the trial court’s
decision turned on credibility, and stated that ‘‘the trial
court credited the testimony of the unbiased responding
police officer, who arrived on the scene minutes after
the assault to witness the damage to the door and the
petitioner’s injuries. Officer Yocher’s testimony corrob-
orated the victim’s testimony and undermined the testi-
mony of Soto that she and the petitioner knocked gently
on the door [and] had not damaged it.’’ The habeas court
concluded, therefore, that the allegations of deficient
performance raised by the petitioner would not have
been sufficient to alter the outcome of the proceeding,
as none of the claims addressed Officer Yocher’s testi-
mony, which was key to the trial court’s credibility
determinations. We agree fully with this analysis.
In addition, the habeas court addressed the issue
of the damaged door. The petitioner claims that his
attorneys’ conduct was deficient because they did not
call the victim’s landlord, who he claims would have
impeached the victim’s testimony by testifying that the
door to her apartment was not replaced. The landlord
testified at the habeas hearing, but had no recollection
of the events that occurred in December, 2008, and
could not recall whether he had been asked to fix the
door. The victim’s boyfriend was also present at the
habeas hearing, however, and testified that he was the
one who found the victim injured after the incident and
the one who fixed the door.
We therefore conclude, like the habeas court, that the
petitioner failed to prove prejudice under the Strickland
test. As a result, the petitioner’s claim of ineffective
assistance of counsel necessarily fails. See Saucier v.
Commissioner of Correction, supra, 139 Conn. App.
650.
II
The petitioner also claims that Anderson was defi-
cient in advising him to plead guilty under the Alford
doctrine to one count of burglary in the first degree,
one count of assault in the third degree, and being a
persistent dangerous felony offender. He then con-
cludes that he was prejudiced by her deficient perfor-
mance. We disagree.
‘‘[T]he United States Supreme Court modified the
prejudice prong of the Strickland test [such that] for
claims of ineffective assistance when the conviction
resulted from a guilty plea, the evidence must demon-
strate 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.) Johnson v.
Commissioner of Correction, 285 Conn. 556, 576, 941
A.2d 248 (2008).
The petitioner argued before the habeas court that
‘‘had the part B charge been adequately explained to
him, he would not have pleaded guilty but would have
insisted on going to trial.’’ The court did not find that
testimony credible but, rather, found that ‘‘[a]t the time
the [trial] court made its offer of ten years concurrent,
the petitioner had been sentenced to and was already
serving a six year sentence on the [violation of proba-
tion]. Upon being sentenced on that charge, the petition-
er’s preconviction jail credit was applied to the
[violation of probation] sentence, and he was doing
dead time on the assault/burglary charges. The petition-
er’s exposure on the assault/burglary was forty years
due to the part B enhancement. The petitioner had a
significant violent felony history that was known to the
court and would be made known to any sentencing
judge after a trial. In view of this, the court’s offer of ten
years concurrent plus application of the approximately
nine months of jail credit was a very reasonable offer
under the circumstances. In essence, since the peti-
tioner was already serving six years on the [violation of
probation], he was receiving only four years additional
time (and less with the jail credit), for the new and
serious charges. . . .
‘‘Based on his testimony at the habeas trial, the peti-
tioner appeared to be under the impression that he
could ‘beat’ the new charges and that the state could
not prove the burglary charge. If the state could not
prove the burglary charge, then he would not be
exposed to the forty years in jail, if convicted after a
jury trial. He claims this was because he was innocent
of the charges. However, the state had significant evi-
dence to establish the burglary charge, and in particular,
that the petitioner went with Soto to confront the vic-
tim, gained entrance to the victim’s residence by kicking
in the door for the purpose of assaulting her, and did
in fact assault her. The petitioner was not a novice to
the criminal justice system, having been convicted of
a serious violent felony in the past, and the court
believes [he] was aware of the risks of going to trial.
He accepted the plea offered to him because it was a
good offer. He would not have risked going to trial and
receiving a potentially greater sentence.’’
‘‘It is well established that [i]n a case tried before a
court, the trial judge is the sole arbiter of the credibility
of the witnesses and the weight to be given specific
testimony. . . . It is within the province of the trial
court, as the fact finder, to weigh the evidence pre-
sented and determine the credibility and effect to be
given the evidence.’’ (Internal quotation marks omit-
ted.) Sanders v. Commissioner of Correction, 83 Conn.
App. 543, 553, 851 A.2d 313, cert. denied, 271 Conn. 914,
859 A.2d 569 (2004). ‘‘As the arbiter of facts, the court
was required to evaluate the evidence and was permit-
ted to make all reasonable and logical conclusions from
the facts presented.’’ Id., 552. It was therefore permissi-
ble for the court to find that he would not have accepted
the plea offer, despite his statement that ‘‘had the part
B charge been adequately explained to him, he would
not have pleaded guilty but would have insisted on
going to trial.’’ Consequently, the court’s factual conclu-
sion was not clearly erroneous.
We conclude that the petitioner failed to prove that
he was prejudiced by any alleged deficiencies of his
counsel with regard to his Alford plea. His ineffective
assistance of counsel claim therefore fails.
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed.
2d 162 (1970), a criminal defendant is not required to admit his guilt, but
consents to being punished as if he were guilty to avoid the risk of proceeding
to trial.’’ (Internal quotation marks omitted.) State v. Faraday, 268 Conn.
174, 204, 842 A.2d 567 (2004).
2
We note that ‘‘ ‘dead time’ ’’ is prison parlance for presentence confine-
ment time that cannot be credited because the inmate is a sentenced prisoner
serving time on another sentence.’’ Griffin v. Commissioner of Correction,
123 Conn. App. 840, 843 n.3, 3 A.3d 189 (2010).