Yashenko v. Commissioner of Correction , 177 Conn. App. 740 ( 2017 )

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APPENDIX
ROCCO YASHENKO v. COMMISSIONER
OF CORRECTION*
Superior Court, Judicial District of Tolland
File No. CV-14-4006262-S
Memorandum filed May 25, 2016
Proceedings
Memorandum of decision on petitioner’s petition for
writ of habeas corpus. Petition denied.
William A. Adsit, assigned counsel, and Robert
O’Brien, assigned counsel, for the petitioner.
Eva B. Lenczewski, supervisory assistant state’s
attorney, for the respondent.
Opinion
BRIGHT, J.
I
INTRODUCTION
The petitioner, Rocco Yashenko, brings this petition
for a writ of habeas corpus, claiming that his conviction
based upon his guilty plea is unconstitutional because
his attorney, Brian Pear, failed to communicate to the
state and the court the petitioner’s acceptance of an
earlier, more favorable plea offer. The petitioner claims
that this failure by counsel caused him to accept a much
less favorable plea offer. In Count One of his amended
petition, the petitioner claims that his sixth amendment
right to effective assistance of counsel was violated. In
Count Two, he claims that his due process rights under
the fifth amendment were violated in that he was
coerced to enter into the plea he is now challenging
because his acceptance of the earlier plea offer was
not communicated to the court. The respondent, the
Commissioner of Correction, has denied that any of the
petitioner’s constitutional rights were violated.
The case was tried to the court on February 5, 2016.
The petitioner presented his own testimony, as well as
the testimony of Attorney John Drapp, who represented
the petitioner after his case was transferred to the part
A docket, Donald Cretella, a Connecticut attorney who
specializes in criminal matters, and Attorney Pear. The
respondent cross-examined the petitioner’s witnesses,
but called no witnesses of his own. The court also
received as exhibits the original information, the substi-
tute information to which the petitioner pleaded guilty,
and the transcripts related to the petitioner’s court
appearances, including his guilty plea and sentencing.
II
FINDINGS OF FACT
Based on the evidence presented, the court finds
the following facts. On January 26, 2013, the petitioner
participated in a burglary of 62 Appleton Street in Water-
bury. Accompanying the petitioner in the crime was
Anthony Olzewski. A neighbor called the police after
observing the petitioner and Olzewski entering the
backyard of 62 Appleton Street. The police responded
and found the petitioner hiding in the attic of the prop-
erty. After a brief struggle, the petitioner was arrested.
The police also found Olzewski in the residence. A
further search of the house disclosed that the petitioner
and Olzewski had neatly stacked by the back door the
items they intended to steal from the residence, includ-
ing several small kitchen appliances, three air powered
rifles, a Sony PlayStation 3, tools and several other
electronic devices.
The petitioner and Olzewski were arrested and
charged. The petitioner was charged with burglary in
the first degree, conspiracy to commit burglary in the
first degree, larceny in the fifth degree, conspiracy to
commit larceny in the fifth degree, criminal mischief
in the second degree, conspiracy to commit criminal
mischief in the second degree, and interfering with an
officer. At the time of his arrest, the petitioner was
also facing an outstanding charge of operating a motor
vehicle on November 8, 2012, while under suspension.
His criminal case was assigned docket number CR-13-
0414623 S. His motor vehicle case was docket number
MV-12-04244273 S.
The petitioner was arraigned in Waterbury on January
28, 2013. The petitioner made application for a public
defender, and on March 1, 2013, Attorney Pear appeared
in court with the petitioner for the first time as his
assigned counsel on both cases. At the time, the cases
were pending in the geographical area number four
courthouse.
The petitioner next appeared in court on the charges
on March 28, 2013. By that time, the petitioner had
discussed with Attorney Pear his desire to enter into a
plea agreement with the state. The petitioner knew that
the criminal case against him was strong and that he
had little chance at prevailing if he took the case to
trial. The petitioner also knew that he was exposed to a
potentially long sentence because he had prior burglary
convictions in Waterbury. In connection with those
prior cases, the petitioner had received sentences that
included periods of probation. He did not do well on
his probations and ended up being prosecuted for vio-
lating the probations, and, as a result, being incarcer-
ated. Given his bad experience with probation, the
petitioner asked Attorney Pear to negotiate a plea
agreement for no more than a flat two years to serve.
On March 28, Attorney Pear had discussions with the
state’s attorney regarding a possible plea. There is no
evidence of any offer being made at that time, as the
state’s attorney informed Attorney Pear that he needed
to talk to the victim of the burglary.
The petitioner next appeared in the geographical area
number four courthouse on May 3, 2013. The petitioner
and Attorney Pear agree that the state made an offer
on that date to file a substitute information charging
the petitioner with burglary in the third degree, and
allowing the petitioner to plead guilty to that charge to
resolve his criminal case. In return, the petitioner would
agree to a sentence of five years, execution suspended
after two years of incarceration, followed by three years
of probation (5/2/3 offer). Attorney Pear conveyed the
offer to the petitioner. Attorney Pear thought the offer
was good for the petitioner in light of the case
against him.
The petitioner and Attorney Pear disagree about what
happened after Attorney Pear conveyed the offer to the
petitioner. According to the petitioner, he immediately
told Attorney Pear that he wanted to accept the offer.
Attorney Pear testified that he could not remember
exactly what the plaintiff said about the offer. However,
after reviewing his file to refresh his recollection, Attor-
ney Pear testified that the petitioner did not want to
accept the offer that day. The petitioner still wanted
to negotiate a sentence that involved no probation. In
addition, Attorney Pear testified that the petitioner
wanted to wait to see what happened with Olzewski’s
case before accepting the state’s offer. Attorney Pear
further testified that the offer could have been accepted
that day and that he would have conveyed the petition-
er’s acceptance of the offer if the petitioner had
instructed him to do so. He also testified that he would
not have asked for a continuance of the case against
his client’s wishes.
The court finds Attorney Pear’s account to be more
credible. While Attorney Pear had no particular reason
to delay resolution of the case, the petitioner did. He
was still hopeful that he could ultimately negotiate a
plea that did not involve probation. He also hoped that
the disposition of his codefendant’s case might result
in a more favorable disposition for the petitioner. Con-
sequently, the court finds that the petitioner never
instructed Attorney Pear to accept the state’s offer.
Instead, the petitioner told Attorney Pear that he
wanted to have the case continued to see if a better
offer could be negotiated and to see what happened
with his codefendant’s case.
This finding is further supported by what happened
in court on May 3, after the state’s offer was conveyed
to the petitioner. The petitioner appeared in court with
Attorney Pear. Attorney Pear noted that the state had
made an offer that involved jail time. He then asked
for a continuance until May 30. Finally, he informed
the court that he thought the case would be resolved
at that time. At no time did the petitioner express any
reservations about the continuance or any desire to
accept the state’s offer. Furthermore, there was no rea-
son for Attorney Pear to ask that the case be continued
for four weeks and then be disposed of, if the petitioner
truly wanted to accept the state’s offer that day. The
brief report by Attorney Pear and the petitioner’s silence
during it, only confirm that the petitioner did not want
to accept the state’s offer that day.
The 5/2/3 offer was not placed on the record, and
the case was continued until May 30, 2013. While the
petitioner did not want to accept the offer on May 3,
both he and Attorney Pear expected that the offer would
still be available when they returned to court on May
30. That turned out not to be the case.
When the petitioner returned to court on May 30,
Attorney Pear was informed that the state had created
a new burglary docket due to the rash of burglaries in
Waterbury. All cases involving defendants who were
previously convicted of burglaries would be placed on
this docket and assigned to one particular prosecutor
who would handle the cases on the part A docket.
Attorney Pear was informed that the petitioner’s crimi-
nal case was being transferred to part A as part of this
docket. As a result, the 5/2/3 offer made to the petitioner
on May 3 was withdrawn. Attorney Pear argued that
such a transfer was unfair to the petitioner and contrary
to the practice in the district of leaving plea offers open
until the next court date. This was the first and only
time that Attorney Pear had an offer withdrawn by the
state with no advance notice. The state’s attorney was
not persuaded. Attorney Pear concluded that there was
little he could do. The trial judge could not require the
state to reduce the charge as contemplated by the plea
offer. In any event, the offer had not been accepted.
Consequently, when the petitioner appeared in court
on May 30, the state informed him and the court that
his criminal case was being transferred to part A. The
state offered an unconditional discharge if the peti-
tioner pleaded guilty to the motor vehicle charge. The
petitioner agreed, and pleaded guilty to the charge of
operating under suspension. He was canvassed by the
court, which accepted his plea and entered a sentence
of an unconditional discharge.
In July or August, 2013, Attorney Drapp was
appointed as a special public defender to represent
the petitioner, replacing Attorney Pear. Attorney Drapp
learned about the previous 5/2/3 offer from the peti-
tioner. The petitioner told Attorney Drapp that he had
accepted the offer on May 30 and had pleaded guilty
pursuant to the offer. Attorney Drapp knew this was
not true. Instead, he concluded that the petitioner must
have misunderstood that his guilty plea on May 30 was
only to the motor vehicle charge. Attorney Drapp
informed the petitioner that while he was unclear on
what happened before the case was transferred to part
A, he did know that the 5/2/3 offer was no longer avail-
able. Instead, on September 4, 2013, Attorney Drapp
informed the petitioner that the state’s new offer was
a sentence of five years in prison followed by five years
of special parole in exchange for a guilty plea on the
charge of burglary in the first degree. The petitioner
was not happy about the new offer or the fact that
he could no longer take advantage of the 5/2/3 offer.
Nevertheless, he had no intention of taking his case to
trial. However, he still wanted some time to consider
the state’s offer. Consequently, when the petitioner
appeared before the court on September 4, the state
agreed to give the petitioner until September 30 to
accept or reject the offer. Attorney Drapp then recited
the offer on the record. The offer was subsequently
extended until October 17, 2013, when the petitioner
accepted it.
Prior to accepting the petitioner’s guilty plea, the
court canvassed the petitioner. The court specifically
asked the petitioner if he was pleading guilty voluntarily
and of his own free will. The petitioner responded that
he was. The petitioner also specifically confirmed that
nobody had forced him or threatened him to get him
to plead guilty. The court also noted that by pleading
guilty, the petitioner was avoiding the possibility of
being charged as a persistent offender in light of his
prior convictions. The petitioner then confirmed that
the state’s recitation of the facts, which was consistent
with the underlying facts set forth above, was accurate.
Finally, the petitioner confirmed that he understood the
agreed upon sentence to be five years of incarceration
followed by five years of special parole. At no time did
the petitioner express any reluctance or reservations
about his guilty plea or the agreed upon sentence. At
no time did he make any reference to the 5/2/3 offer
or claim that he had previously accepted that offer. Nor
did the petitioner claim that he felt pressured to plead
guilty or that he needed more time to consider his
options. The court accepted the petitioner’s guilty plea
and sentenced him in accordance with the parties’ plea
agreement. Additional facts will be discussed as nec-
essary.
III
DISCUSSION
A
Count One—Ineffective Assistance of Counsel
In Count One of his amended petition, the petitioner
claims that he was deprived of his constitutional right
to the effective assistance of counsel. In particular, he
claims that Attorney Pear’s performance was constitu-
tionally deficient because Attorney Pear: (1) failed to
communicate the petitioner’s acceptance of the state’s
plea offer before it was withdrawn; (2) failed to inform
the petitioner of the potential consequences of not
accepting the offer; and (3) failed to ensure that the
plea offer was preserved and not permitted to lapse.
It is well established that under the sixth and four-
teenth amendments to the United States constitution,
and article first, § 8, of the Connecticut constitution, a
criminal defendant is constitutionally entitled to ade-
quate and effective assistance of counsel at all critical
stages of a criminal proceeding. Strickland v. Washing-
ton, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). The United States Supreme Court has held that
pretrial negotiations implicating the decision as to
whether to plead guilty are a critical stage in criminal
proceedings for purposes of the sixth amendment right
to effective assistance of counsel. Padilla v. Kentucky,
559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010);
Missouri v. Frye, 566 U.S. 134, 132 S. Ct. 1399, 182 L.
S. Ct. 1376, 182 L. Ed. 2d 398 (2012).
‘‘In today’s criminal justice system . . . the negotia-
tion of a plea bargain, rather than the unfolding of a
trial, is almost always a critical point for a defendant.’’
Missouri v. Frye, supra, 566 U.S. 144. Similarly, ‘‘[o]ur
Supreme Court has recognized that pretrial negotiations
implicating the decision of whether to plead guilty is a
critical stage, and, therefore, a defendant is entitled to
adequate and effective assistance of counsel at this
juncture of the criminal proceedings . . . .’’ (Emphasis
omitted; internal quotation marks omitted.) Gonzalez
v. Commissioner of Correction, 122 Conn. App. 705,
724 n.4, 1 A.3d 170 (2010) (Schaller, J., dissenting),
aff’d, 308 Conn. 463, 68 A.3d 624, cert. denied sub nom.
Dzurenda v. Gonzalez, U.S. , 134 S. Ct. 639, 187
L. Ed. 2d 445 (2013). The decision to plead guilty is
‘‘ordinarily the most important single decision in any
criminal case.’’ (Internal quotation marks omitted.)
Peterson v. Commissioner of Correction, 142 Conn.
App. 267, 273, 67 A.3d 293 (2013). Because the plea
bargaining process is a critical stage in a criminal pro-
ceeding, ‘‘criminal defendants require effective counsel
during plea negotiations.’’ Missouri v. Frye, supra, 144;
see Lafler v. Cooper, supra, 566 U.S. 163. ‘‘Anything less
. . . might deny a defendant effective representation
by counsel at the only stage when legal aid and advice
would help him.’’ (Internal quotation marks omitted.)
Missouri v. Frye, supra, 144.
‘‘Although this decision [to plead guilty] is ultimately
made by the defendant, the defendant’s attorney must
make an informed evaluation of the options and deter-
mine which alternative will offer the defendant the most
favorable outcome. A defendant relies heavily upon
counsel’s independent evaluation of the charges and
defenses, applicable law, the evidence and the risks
and probable outcome of a trial.’’ (Emphasis omitted;
internal quotation marks omitted.) Peterson v. Commis-
sioner of Correction, supra, 142 Conn. App. 273.
In Missouri v. Frye, supra, 566 U.S. 134, the United
States Supreme Court held that ‘‘defense counsel has
the duty to communicate formal offers from the prose-
cution to accept a plea on terms and conditions that may
be favorable to the accused.’’ Id., 145. When defense
counsel allows an offer to expire without advising the
defendant or allowing him to consider it, defense coun-
sel does not render the effective assistance the constitu-
tion requires. Id.
This principle logically applies to counsel’s duty to
communicate a client’s response to such an offer. The
duty to convey a plea offer to a defendant would have
little meaning if counsel did not have a corresponding
duty to communicate to the state and the court that his
client has accepted the offer. Consequently, failure to
inform the state or the prosecutor that a client has
accepted an offer made to him would constitute defi-
cient performance.
It is important to remember, though, that when
assessing counsel’s performance during the plea negoti-
ating process, the habeas court is still required to
‘‘indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance . . . .’’ Strickland v. Washington, supra, 466
U.S. 689. The United States Supreme Court explained:
‘‘A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances
of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.
Because of the difficulties inherent in making the evalu-
ation . . . the defendant must overcome the presump-
tion that, under the circumstances, the challenged
action might be considered sound trial strategy. . . .
There are countless ways to provide effective assistance
in any given case. Even the best criminal defense attor-
neys would not defend a particular client in the same
way.’’ (Citation omitted; internal quotation marks omit-
ted.) Id.
‘‘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. Cf. Glover v. United States, 531 U.S.
198, 203 [121 S. Ct. 696, 148 L. Ed. 2d 604] (2001) (‘[A]ny
amount of [additional] jail time has [s]ixth [a]mendment
significance’).’’ Missouri v. Frye, supra, 566 U.S. 147;
see also Ebron v. Commissioner of Correction, 307
Conn. 342, 357, 53 A.3d 983 (2012) (to show prejudice
in lapsed plea case, petitioner must establish: ‘‘[1] it is
reasonably probable that, if not for counsel’s deficient
performance, the petitioner would have accepted the
plea offer, and [2] the trial judge would have condition-
ally accepted the plea agreement if it had been pre-
sented to the court’’), cert. denied sub nom. Arnone v.
Ebron, U.S. , 133 S. Ct. 1726, 185 L. Ed. 2d 802
(2013). ‘‘In order to complete a showing of Strickland
prejudice, defendants who have shown a reasonable
probability they would have accepted the earlier plea
offer must also show that, if the prosecution had the
discretion to cancel it or if the trial court had the discre-
tion to refuse to accept it, there is a reasonable probabil-
ity neither the prosecution nor the trial court would
have prevented the offer from being accepted or imple-
mented.’’ Missouri v. Frye, supra, 148.
Applying these same principles to a case where coun-
sel failed to communicate his client’s acceptance of the
state’s offer, the petitioner must prove that: (1) the offer
was still available when the petitioner instructed his
counsel to accept it; (2) the failure to communicate
acceptance of the offer resulted in it lapsing or being
withdrawn such that it was no longer available to the
petitioner; (3) there is a reasonable probability that the
trial judge would have accepted the plea agreement;
and (4) the outcome of the proceeding was worse for
the petitioner than the offer.
The petitioner cannot succeed on his first claim of
deficient performance because he has not proven that
he instructed Attorney Pear to accept the 5/2/3 offer.
It is undisputed that the state made such an offer and
that Attorney Pear communicated it to the petitioner. It
is also undisputed that Attorney Pear and the petitioner
discussed the offer. As noted above, though, the court
does not find credible the petitioner’s testimony that
he instructed Attorney Pear to accept the offer. To
the contrary, the court finds, based on Attorney Pear’s
testimony, that the petitioner wanted to have the case
continued to see what happened with his codefendant’s
case, and to see if the state would agree to a sentence
that included no probationary period. Attorney Pear
cannot be blamed for not communicating an acceptance
that never occurred.
The petitioner alternatively claims that Attorney Pear
was deficient for failing to make sure on May 3 that
the 5/2/3 offer was preserved until the next court date
on May 30. Presumably, the petitioner is claiming that
Attorney Pear could have done so either by getting the
state’s express commitment to keep the offer open and/
or by having the offer placed on the record in open
court, as Attorney Drapp did with the state’s second
offer on September 4. The court is not persuaded.
The offer placed on the record on September 4 was
set down to be accepted or rejected on the next court
date. Those were the choices that the petitioner had at
that time. There is no evidence that either the petitioner
or the state intended to negotiate further. By contrast,
the petitioner did not accept the 5/2/3 offer on May 3
specifically because he hoped for a better offer on his
next court date. Had Attorney Pear put the offer on the
record and asked for an accept or reject date, he would
have communicated to the state and the court that that
was the offer under consideration and there would be
no more negotiations. That was not the petitioner’s
intention.
While Attorney Cretella testified that it is his custom-
ary practice to put offers made in the geographical area
courthouses on the record, he did not testify that it
would be deficient performance not to do so. Such a
conclusion would require that every time the state
makes an offer to a defendant, that it is stated on the
record. There was no evidence that this is the practice
in any criminal court in this state. Attorney Pear testified
that it was not his typical practice in the geographical
area number four courthouse to put offers on the
record. The court concludes that it is fairly typical for
counsel to place an offer on the record only if it is the
state’s final offer to be accepted or rejected, or when
it is necessary to make a record of an offer that was
rejected by a defendant. Neither circumstance applied
here. Attorney Pear’s failure to recite the 5/2/3 offer on
the record was not unreasonable.
Nor was it unreasonable for Attorney Pear not to
extract an explicit promise from the state to keep the
offer open until the next court date. First, doing so
would have sent a signal to the state that the offer was
acceptable, and would have undermined the petitioner’s
attempts to secure a better offer. Second, Attorney Pear
testified that he probably did not ask the state to keep
the offer open because he had never had an issue with
the state doing so. In fact, the offer was withdrawn
here only because of the unique circumstance of the
state’s deciding between May 3 and May 30 to create
the specialized burglary docket. There was no evidence
that Attorney Pear could have or should have antici-
pated this development. While in hindsight one might
question whether he should have explicitly preserved
the offer, the court cannot say that based on what Attor-
ney Pear knew on May 3, that his decision not to do
so constitutes deficient performance.
For the same reason, the petitioner’s final claim that
Attorney Pear failed to advise him of the consequences
of not accepting the offer fails. Attorney Pear could not
have anticipated the circumstance that caused the offer
to be withdrawn. Based on past experience, he reason-
ably believed that the 5/2/3 offer would still be available
on May 30 if he was not able to negotiate a better deal.
His failure to caution the petitioner about a contingency
that he could not have foreseen does not constitute
deficient performance.
Because the petitioner has failed to prove that Attor-
ney Pear’s performance was deficient, he cannot suc-
ceed on his claim of ineffective assistance of counsel.
B
Count Two—Voluntariness
Of October 17, 2013
Guilty Plea
In Count Two of his amended petition, the petitioner
claims that his guilty plea on October 17, 2013, to the
charge of burglary in the first degree was not voluntary.
In particular, he claims that Attorney Pear’s negligence
in not conveying the petitioner’s acceptance of the 5/
2/3 offer and/or in making sure that the offer was pre-
served for the next court date somehow undermines
the voluntariness of his subsequent plea.
Because this claim is premised on Attorney Pear’s
conduct, it is inextricably tied to the petitioner’s ineffec-
tive assistance of counsel claim. As such, this claim
cannot succeed. First, the court finds that the petitioner
did not want to accept the 5/2/3 offer on May 3. Thus,
there was no acceptance for Attorney Pear to communi-
cate. Second, the court finds that Attorney Pear did not
act unreasonably by not placing the 5/2/3 offer on the
record on May 3 or by not getting an explicit promise
from the state to keep the offer open.
Furthermore, the evidence is clear that the petition-
er’s plea on October 17, 2013, was knowing and volun-
tary. First, he explicitly told the court that it was.
Second, there is no evidence that he did not completely
understand exactly what he was doing when he pleaded
guilty. Third, the petitioner was clear to both Attorney
Pear and Attorney Drapp that he did not want to go to
trial. He wanted to plead guilty. While he may have
been disappointed that the state’s offer on October 17
was not as good as the offer he received and chose not
to accept on May 3, that does not mean that his plea
on October 17 was involuntary. The petitioner’s disap-
pointment in no way undermines the validity of his
guilty plea. He made a knowing and rational decision
that rather than going to trial on a case he was almost
certain to lose and risk exposure to a much longer
sentence, he was better off accepting five years in prison
followed by five years of special parole.
For these reasons, the petitioner has failed to prove
his claim in Count Two.
IV
CONCLUSION
For the foregoing reasons, the petition is denied and
judgment shall enter for the respondent.
* Affirmed. Yashenko v. Commissioner of Correction, 177 Conn. App.
, A.3d (2017).