Ham v. Comm'r of Correction.

• Decision Date: 26 July 2011
• Docket Number: No. 18530.,18530.
• Citation: 301 Conn. 697,23 A.3d 682
• Court: Connecticut Supreme Court
• Parties: Eric HAMv.COMMISSIONER OF CORRECTION.

301 Conn. 697

23 A.3d 682

Eric HAM

v.COMMISSIONER OF CORRECTION.

No. 18530.

Supreme Court of Connecticut.

Argued Feb. 14, 2011.Decided July 26, 2011.

Glenn W. Falk, special public defender, for the appellant (petitioner).Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Linda Howe, former senior assistant state's attorney, for the appellee (respondent).ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN and EVELEIGH, Js.McLACHLAN, J.

The petitioner, Eric Ham, appeals ¹ from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claims that the habeas court improperly denied his petition for failure to establish that he was entitled to relief, regardless of his subsequent conviction and sentencing pursuant to a fair trial, where he had argued that his counsel's mistaken advice during the plea bargaining process led him to reject the state's favorable plea offer. The dispositive issue in this appeal is whether the mistaken advice concerning parole eligibility provided by counsel during plea negotiations, namely, that the petitioner would be eligible for parole after serving 85 percent of his sentence, not 50 percent, constitutes objectively deficient representation under the standard for assessing sixth amendment ineffective assistance of counsel claims established in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We conclude that it does not, and, accordingly, we affirm the habeas court's judgment.

The record reveals the following relevant facts, as found by the habeas court or otherwise undisputed, and procedural history. In 1993, the petitioner was charged with the following six crimes: (1) conspiracy to commit larceny in the third degree in violation of General Statutes §§ 53a–48 (a) and 53a–124 (a)(1); (2) larceny in the third degree in violation of § 53a–124 (a)(1); (3) conspiracy to commit murder in violation of General Statutes §§ 53a–48 (a) and 53a–54a (a); (4) murder in violation of § 53a–54a (a); (5) assault in the first degree in violation of General Statutes § 53a–59; and (6) falsely reporting an incident in violation of General Statutes (Rev. to 1993) § 53a–180 (a)(3)(A). The petitioner's counsel (counsel) had informed the petitioner that the potential maximum sentence for all six crimes was more than a life sentence. Counsel further advised him that, if he was convicted of murder, he would not be eligible for parole and would face a mandatory minimum sentence of twenty-five years to serve.

Shortly before trial, the state offered the petitioner a plea bargain in which he would plead guilty to manslaughter in exchange for a total effective sentence of twenty-seven years, execution suspended after seventeen years. Counsel informed the petitioner that, if he accepted the plea offer, he would be eligible for parole after serving 85 percent of the seventeen year term, meaning that he would be eligible after serving approximately fourteen and one-half years. Counsel's advice was based on Public Acts 1995, No. 95–255, § 1 ( P.A. 95–255), which became effective on July 1, 1996, and amended General Statutes (Rev. to 1995) § 54–125a by increasing from 50 percent to 85 percent the portion of a sentence that certain violent offenders must serve before becoming eligible for parole.² When counsel advised the petitioner, his advice was consistent with the interpretation of P.A. 95–255, § 1, by the board of parole (board), namely, that P.A. 95–255, § 1, applied retroactively to those offenders who committed their offenses prior the effective date of July 1, 1996.³

The petitioner rejected the offer, and proceeded to trial. After several days of trial, the state indicated to counsel that it would be willing to extend a new plea offer of approximately twelve to thirteen years imprisonment. Counsel notified the petitioner of the new offer, and advised him that he probably could obtain an offer of approximately ten years. The petitioner rejected counsel's attempts to secure any such offer and informed counsel that he would not accept any plea offer of more than five years. The jury returned a guilty verdict on all six charges, and in April, 1997, the court sentenced the petitioner to a total effective term of fifty years imprisonment. On appeal, the Appellate Court affirmed the trial court's judgment. State v. Ham, 55 Conn.App. 281, 739 A.2d 1268, cert. denied, 252 Conn. 916, 743 A.2d 1128 (1999).

Subsequently, in Johnson v. Commissioner of Correction, 258 Conn. 804, 808, 786 A.2d 1091 (2002), this court held that P.A. 95–255, § 1, applied prospectively only, meaning that, for crimes committed prior to the act's effective date of July 1, 1996, § 54–125a required that certain violent offenders serve 50 percent of the sentence imposed before becoming eligible for parole, rather than 85 percent. Our decision in Johnson thus clarified that, because the petitioner here had committed his crimes in 1993, if he had accepted a plea offer, he would have been eligible for parole after serving only 50 percent of the sentence, rather than 85 percent.

On July 25, 2005, the petitioner filed a petition for a writ of habeas corpus alleging that he had been denied effective assistance of counsel.⁴ According to the petitioner, his counsel provided ineffective assistance by “inaccurate[ly]” advising him that, if he accepted the first plea offer, he would be eligible for parole only after serving 85 percent of the seventeen year term. The petitioner further maintained that, but for counsel's error, he would have accepted the second plea offer of only twelve to thirteen years. The petitioner requested that the court immediately release him from custody, vacate his judgment of conviction and remand the case back to the trial court for a new trial, and grant any other such relief, as law and equity may allow. ⁵

[23 A.3d 686 , 301 Conn. 702]

On November 10, 2008, the habeas court denied the petition for a writ of habeas corpus and rendered judgment for the respondent, the commissioner of correction. The court determined that, even assuming that counsel's pretrial representation amounted to deficient performance, such performance did not affect the outcome of the petitioner's trial, and accordingly, he was not prejudiced, as required for ineffective assistance claims under Strickland v. Washington, supra, 466 U.S. at 687, 104 S.Ct. 2052. Additionally, the habeas court noted that counsel's “advice to the petitioner that he would be parole eligible at 85 [percent] was in accord with the ... [board's] interpretation and application of P.A. 95–255, § 1. The [b]oard was interpreting [P.A. 95–255, § 1] to apply retroactively. It was not until early 2002, approximately five years after [counsel's] advice at issue, that the [Connecticut] Supreme Court in Johnson v. Commissioner of Correction, [supra, 258 Conn. 804, 786 A.2d 1091], held that P.A. 95–255, § 1, only applied prospectively. This court would not conclude, given the foregoing, that [counsel's] advice regarding parole eligibility at 85 [percent] versus 50 [percent] would rise to the level of being deficient performance.” This appeal followed.

The petitioner claims that the habeas court improperly denied his petition for a writ of habeas corpus for failure to establish a colorable claim of a violation of the right to effective assistance of counsel ⁶ on the basis of his claim that his counsel deficiently advised him during the plea bargaining process. The habeas court denied his petition because he was later convicted and sentenced following a fair trial. The petitioner argues that a petition for a writ of habeas corpus should be granted when a petitioner demonstrates that his counsel provided deficient assistance during the plea bargaining process, regardless of whether such assistance deprived him of a fair trial. The respondent maintains that, although the right to effective assistance of counsel applies in plea negotiations, deficient assistance during such negotiations does not violate that right unless it affects the fairness of the trial. We need not decide, however, whether deficient assistance of counsel, resulting in a fair and reliable trial rather than a guilty plea, establishes a colorable claim of ineffective assistance of counsel.⁷ Even assuming that it does, because we conclude that counsel's performance was not deficient, the petitioner has failed to establish a claim that counsel was ineffective for sixth amendment purposes. Thus, we affirm the habeas court's judgment.

“As enunciated in Strickland v. Washington, [supra, 466 U.S. at 687, 104 S.Ct. 2052] ... [a] claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong ... the petitioner must demonstrate that his attorney's representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.... 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.) Fernandez v. Commissioner of Correction, 291 Conn. 830, 835, 970 A.2d 721 (2009). A court can find against a petitioner, with respect to a claim of ineffective assistance of counsel, on either the performance prong or the prejudice prong, whichever is easier. Washington v. Commissioner of Correction, 287 Conn. 792, 832–33, 950 A.2d 1220 (2008).

In the present case, the petitioner claims that counsel's performance was not objectively reasonable because counsel “inaccurate[ly]” advised him that, if he accepted the first plea offer, he would be eligible for parole only after serving 85 percent of the seventeen year term, when, in fact, he would have...