DocketNumber: No. CV 99-0432041
Citation Numbers: 2000 Conn. Super. Ct. 9402
Judges: DOWNEY, JUDGE.
Filed Date: 8/1/2000
Status: Non-Precedential
Modified Date: 4/17/2021
The petition was filed on October 28, 1999. An Amended Petition was filed on January 3, 2000. The respondent's Return was filed on March 24, 2000. A hearing on the merits opened on May 11, 2000 and continued on June 20, 2000, when the parties rested.
If convicted of manslaughter in the first degree with a firearm, the petitioner faced a maximum sentence of forty years imprisonment with a mandatory five year minimum. As a result of plea negotiations the petitioner agreed to enter a plea of nolo contendere to the manslaughter charge, in return for which the State would ask for a cap of twenty years to be served, consecutive to the petitioner's then current sentence, with the petitioner free to argue for less. At the time of plea, the judge, in the course of a thorough canvass, made clear to the petitioner that should the petitioner enter a plea and subsequently seek to withdraw said plea, it was highly unlikely the judge would allow him to do so.
At the time of sentencing, the petitioner indicated he wished to dismiss his attorney, withdraw his plea and obtain a continuance to obtain other counsel. The Court refused to grant the petitioner a continuance and refused to let him withdraw his plea. After the Court urged him to reconsider his decision to dismiss his attorney and to represent himself, the petitioner elected to retain Weinstein as his attorney at the sentencing hearing. Following oral argument, and after statements by members of the victim's family and the petitioner's family, as well as a statement by the petitioner, the Court sentenced the petitioner to a term of twenty years imprisonment, to be served consecutive to the sentence he was then serving.
Specifically, the petitioner alleges that his attorney, at the time of the plea hearing told Debra Bryant that the petitioner should take the plea offer, but that the petitioner was contemplating an alibi defense, CT Page 9404 leaving Tavorus to "take the weight." At the habeas hearing, Debra Bryant testified to this effect. Other family members testified that Weinstein had persistently sought their agreement to retain him to represent the heirs in a wrongful death action on behalf of Evelyn Gray's estate.
The Court notes that the probate dispute (concerning who would be named administrator of the estate) may have been resolved by the time of the petitioner's plea hearing. The petitioner has failed to establish, by a fair preponderance of the evidence, that his lawyer actively represented conflicting interests at the time of the petitioner's plea or sentencing hearings. Assuming, arguendo, that the petitioner has made a colorable claim of attorney misconduct, the petitioner has failed to demonstrate that his counsel's representation of Debra Bryant at the Probate Court or Weinstein's efforts to represent the estate in a wrongful death action adversely affected Weinstein's performance as petitioner's counsel.
Viewing counsel's performance in the circumstances existing at the time of plea, his advice to the petitioner to accept the State's offer was CT Page 9405 reasonable and well within the range of competence of an experienced trial lawyer in such circumstances. The petitioner faced a maximum exposure of forty years, consecutive to the sentence he was then serving. While the State had some concern regarding the credibility of a key witness, sufficient to make the offer, it had other evidence and was prepared to try the case. The state's attorney acknowledged at the hearing that Weinstein's cross-examination at the probable cause hearings was instrumental in causing the State's credibility concerns regarding the witness. The Court, after a thorough canvass, found that the petitioner's plea was made knowingly, voluntarily and intelligently and with the effective assistance of counsel and the petitioner has failed to establish the contrary in this habeas proceeding.
The petitioner has also claimed that the Court, (Miano, J.) had demonstrated bias or prejudice toward him and acted in violation of Canon 3d. of the Code of Judicial Conduct. A review of the transcripts of both the plea and sentencing hearings shows that this claim is without merit. Claims of misconduct by the Court, (Parker, J.) in holding a second probable cause hearing are also without merit, as is the claim that the state's attorney violated Rule 3.8 of the Rules of Professional Conduct "in seeking a second probable cause hearing."
By the Court,
Downey, J.