Delvecchio v. Commissioner of Correction

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CARL DELVECCHIO v. COMMISSIONER
OF CORRECTION
(AC 34851)
Alvord, Bear and Schaller, Js.
Argued December 5, 2013—officially released April 15, 2014
(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
Mary H. Trainer, assigned counsel, for the appel-
lant (petitioner).
David J. Smith, senior assistant state’s attorney, with
whom, on the brief, was Michael L. Regan, state’s attor-
ney, for the appellee (respondent).
Opinion
PER CURIAM. The petitioner, Carl Delvecchio,
appeals from the judgment of the habeas court denying
his second amended petition for a writ of habeas cor-
pus. On appeal, the petitioner claims that the habeas
court improperly determined that he was provided with
effective assistance of counsel. We affirm the judgment
of the habeas court.
The habeas court made the following findings of fact.
In March, 2006, a string of armed robberies occurred
over the course of a single evening in Norwich and
Montville. Witnesses to the robberies described to the
police what the assailants looked like, what they were
wearing, and what vehicle they were driving. The police
later stopped a vehicle occupied by two individuals
matching the witnesses’ descriptions. During the stop,
the police conducted a ‘‘drive-by show-up’’ identifica-
tion procedure.1 After the witnesses identified the peti-
tioner as one of the assailants, the police arrested him.
The petitioner was charged in four separate informa-
tions with robbery in the first degree in violation of
General Statutes § 53a-134, larceny in the second degree
in violation of General Statutes § 53a-123, possession
of a firearm without a permit in violation of General
Statutes § 29-35a, and criminal possession of a firearm
in violation of General Statutes § 53a-217. In three of
the four informations, he was charged with attempt to
commit robbery in the first degree in violation of Gen-
eral Statutes §§ 53a-49 and 53a-134. In addition, he was
charged with violation of probation.2
Shortly after his arrest, the petitioner’s family hired
Attorney Robert Cary to represent the petitioner. Cary,
who had represented the petitioner in previous matters,
was in possession of the petitioner’s mental health
records and was familiar with the petitioner’s mental
health history. Consequently, at the petitioner’s first
court appearance, Cary informed the court of the peti-
tioner’s mental health history and prescription medica-
tions, and asked that the petitioner be placed on suicide
watch. Throughout the pretrial proceedings, Cary rou-
tinely checked the state’s file in lieu of a formal discov-
ery request.3
The state initially offered the petitioner a plea
agreement of nine years imprisonment followed by six
years special parole. The petitioner rejected this offer
and his case was placed on the trial list. At a pretrial
conference, the trial court informed Cary that the peti-
tioner should expect to receive the maximum sentence
if convicted. Cary, in turn, explained the trial court’s
position on sentencing to the petitioner, and the peti-
tioner expressed concern to Cary over the possibility
of a harsh sentence if convicted. Thereafter, shortly
before trial, the court offered to resolve all of the peti-
tioner’s charges in exchange for a sentence of ten years
imprisonment followed by five years special parole.
Cary then discussed the offer, as well as the risk of
going to trial and facing a harsher sentence, with the
petitioner. He explained to the petitioner that the state
could establish a violation of probation, resulting in
approximately four and one-half years imprisonment.
In addition, he explained the state’s evidence regarding
the other charges to the petitioner, which included the
testimony of at least one victim who could identify the
petitioner, the presence of the victim’s identification
card in the petitioner’s vehicle when he was arrested,
and the testimony of the petitioner’s codefendant. Cary
thought the court’s offer, under the circumstances, was
a good one. He urged the petitioner to accept it. The
petitioner decided to accept the court’s offer.
The petitioner subsequently pleaded guilty to two
counts of robbery in the first degree and admitted to a
violation of probation.4 Cary believed that the petitioner
was coherent and capable of making the decision to
plead guilty. The court conducted a thorough plea can-
vass, informing the petitioner that if he were convicted
on the robbery charges alone, he faced up to forty years
imprisonment, in addition to the four and one-half years
imprisonment for violation of probation. In addition,
the court inquired whether the petitioner understood
that by pleading guilty, he was waiving his right to a
trial. The petitioner stated that he understood. After
the court accepted the pleas, however, the petitioner
requested to address the court. After the court granted
his request, the petitioner denied committing the rob-
beries. The court then ordered a recess, during which
the petitioner consulted with Cary. Following the
recess, the court explained to the petitioner that if he
denied committing the crimes but believed the state
had enough evidence to convict him, he could plead
guilty pursuant to the Alford doctrine.5 The petitioner
indicated that he wanted to do so. The court then
ordered that the plea canvass would stand and that
both pleas would be changed to Alford pleas. The court
set sentencing for a later date.
Before the sentencing hearing, Cary withdrew as the
petitioner’s counsel. The court appointed Attorney
Gregg W. Wagman to represent the petitioner. Wagman
subsequently filed a motion to vacate the petitioner’s
pleas, but did not request an evidentiary hearing in
connection with the motion. Thereafter, at the sentenc-
ing hearing, the court denied the motion. The court then
sentenced the petitioner to ten years of imprisonment,
followed by five years of special parole, and terminated
the petitioner’s probation pursuant to the terms of the
plea agreement. The petitioner subsequently appealed
his conviction to this court. During the pendency of the
appeal, the petitioner’s appellate counsel filed a motion
to withdraw as counsel on the ground that the appeal
was frivolous. The trial court granted appellate coun-
sel’s motion to withdraw, and this court subsequently
disposed of the petitioner’s appeal on its own motion.
On August 18, 2011, the petitioner filed a second
amended petition for a writ of habeas corpus alleging
that Cary and Wagman rendered ineffective assistance
of counsel in a variety of ways. Following a trial, the
habeas court rejected the claims of ineffective assis-
tance and denied the petition.6 The petitioner then filed
a petition for certification to appeal to this court, which
the habeas court granted. This appeal followed.
The applicable standard of review and principles of
law governing claims of ineffective assistance of coun-
sel are well settled. ‘‘The habeas court is afforded broad
discretion in making its factual findings, and those find-
ings will not be disturbed unless they are clearly errone-
ous. . . . The application of the habeas court’s factual
findings to the pertinent legal standard, however, pre-
sents a mixed question of law and fact, which is subject
to plenary review.’’ (Citations omitted; internal quota-
tion marks omitted.) Gaines v. Commissioner of Cor-
rection, 306 Conn. 664, 677, 51 A.3d 948 (2012).
‘‘Furthermore, it is well established that [a] criminal
defendant is constitutionally entitled to adequate and
effective assistance of counsel at all critical stages of
criminal proceedings. Strickland v. Washington [466
U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)].
This right arises under the sixth and fourteenth amend-
ments to the United States constitution and article first,
§ 8, of the Connecticut constitution. . . . As enunci-
ated in Strickland v. Washington, supra, 687, this court
has stated: It 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. . . . The claim will succeed only if both prongs
are satisfied.’’ (Internal quotation marks omitted.)
Gaines v. Commissioner of Correction, supra, 306
Conn. 677–78.
‘‘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.’’ (Internal quotation marks omitted.) Davis v.
Commissioner of Correction, 147 Conn. App. 343, 349,
81 A.3d 1226 (2013), cert. granted, 311 Conn. 921,
A.3d (2014). ‘‘The prejudice inquiry in claims arising
from counsel’s advice during the plea process differs
from the analysis of claims following conviction after
trial.’’7 Carraway v. Commissioner of Correction, 144
Conn. App. 461, 472, 72 A.3d 426 (2013). In Hill v. Lock-
hart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d. 203 (1985),
the Supreme Court of the United States ‘‘articulated
a modified prejudice standard for cases in which the
conviction has resulted from a guilty plea.’’ Copas v.
Commissioner of Correction, 234 Conn. 139, 151, 662
A.2d 718 (1995). In order to establish prejudice in such
cases, the petitioner must demonstrate ‘‘that there is a
reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted
on going to trial.’’8 Hill v. Lockhart, supra, 59.
In the present case, the habeas court concluded that
even if counsels’ performance was deficient, the peti-
tioner still would have pleaded guilty. This conclusion
is premised on the court’s finding that the petitioner
opted to plead guilty precisely because he was con-
cerned that a trial would result in his conviction and a
harsher sentence than the plea offer. Our review of
the record indicates that the primary source of the
petitioner’s concern that his trial would result in a con-
viction was the potential testimony of his codefendant.
Contrary to the petitioner’s argument, both Cary and
Wagman independently confirmed that the petitioner’s
codefendant would have testified against him if the
petitioner’s case went to trial. Moreover, Cary testified
at the habeas trial that the petitioner repeatedly
expressed that he had ‘‘huge concerns about being con-
victed’’ and that his codefendant was going to ‘‘hang’’
him. Before pleading guilty, the petitioner was aware
of the trial court’s position on sentencing if he were
convicted following a trial, he had ‘‘little doubt’’ that
his codefendant was going to testify against him, and,
in light of his codefendant’s potential testimony, he
indicated to his attorney that he did not want to ‘‘roll
the dice’’ by going to trial. In addition, during his plea
canvass, the petitioner indicated to the court that he
‘‘didn’t want to take the risk of trial’’ precisely because
he believed that the state had enough evidence to con-
vict him.
On the basis of the foregoing, the habeas court rea-
sonably concluded that the petitioner’s decision to
plead guilty arose primarily from his understanding that
the testimony of his codefendant would result in his
conviction if he went to trial. When coupled with his
awareness that he would face the maximum sentence
if convicted, the court properly found that it was not
reasonably probable that the petitioner would have
insisted on going to trial. We note, however, that under
the Strickland-Hill modified prejudice standard, ‘‘[t]he
fundamental question . . . is whether the petitioner
would not have pleaded guilty.’’ Carraway v. Commis-
sioner of Correction, supra, 144 Conn. App. 477 (2013).
Because none of counsels’ alleged errors would have
affected the reason for the petitioner’s decision to plead
guilty, namely, that his codefendant would testify
against him if he went to trial, we conclude that the
petitioner has failed to demonstrate that, absent coun-
sels’ alleged errors, there is a reasonable probability he
would not have pleaded guilty and would have insisted
on going to trial.
The judgment is affirmed.
1
‘‘A ‘show-up’ is the presentation of a single suspect to an eyewitness for
possible identification.’’ State v. Ledbetter, 275 Conn. 534, 549 n.12, 881 A.2d
290 (2005), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537(2006). The ‘‘drive-by show-up’’ identification procedure employed in the
present case involved the police transporting the witnesses to the scene of
the stop to either identify the individuals as the assailants or eliminate them
as suspects in the robberies.
2
As a result of a previous conviction, the petitioner was on probation
when he was arrested in March, 2006.
3
At the time of the pretrial proceedings, the New London state attorney’s
office had an ‘‘open file policy.’’
4
Pursuant to the plea agreement, the state dropped the remaining charges
against the petitioner.
5
See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).
6
The habeas court rejected the petitioner’s claim that his guilty pleas
were ‘‘obtained in violation of his state and federal constitutional rights to
due process of law.’’ Notwithstanding the rejection of this claim, both the
court and the record indicate that the petitioner withdrew his due process
claim at the habeas trial. Whether the claim was withdrawn or rejected, the
petitioner has not raised a due process claim on appeal.
7
To demonstrate prejudice following a conviction after trial, ‘‘the peti-
tioner must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been differ-
ent. A reasonable probability is a probability sufficient to undermine confi-
dence in the outcome.’’ Gaines v. Commissioner of Correction, supra, 306
Conn. 688–89.
8
We note that in Copas v. Commissioner, supra, 234 Conn. 151, our
Supreme Court determined that, to establish prejudice, a petitioner who
has entered a plea of guilty must show that he or she would not have pleaded
guilty and would likely have been successful at trial. By contrast, in an
appeal currently pending in our Supreme Court, both the petitioner and the
respondent, the Commissioner of Correction, maintain that a petitioner must
show only that, but for counsel’s deficient performance, he or she would
not have pleaded guilty and would have insisted on going to trial. See Brown
v. Commissioner of Correction, Docket No. SC 18859.