Baillargeon v. Commissioner of Correction

• Decision Date: 29 January 2002
• Docket Number: (AC 20729)
• Citation: 67 Conn. App. 716,789 A.2d 1046
• Court: Connecticut Court of Appeals
• Parties: RICHARD BAILLARGEON v. COMMISSIONER OF CORRECTION

67 Conn. App. 716

789 A.2d 1046

RICHARD BAILLARGEON v. COMMISSIONER OF CORRECTION

(AC 20729)

Appellate Court of Connecticut.

Argued September 20, 2001.

Officially released January 29, 2002.

Lavery, C. J., and Foti and Flynn, JS. Adam A. Laben, special public defender, with whom, on the brief, was DeniseAnsell, special public defender, for the appellant (petitioner).

Lisa A. Riggione, senior assistant state's attorney, with whom were Vincent J. Dooley, senior assistant state's attorney, and, on the brief, Mark S. Solak, former state's attorney, and Roger Caridad, senior assistant state's attorney, for the appellee (respondent).

Opinion

LAVERY, C. J.

The petitioner, Richard Baillargeon, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. He claims that the habeas court improperly (1) held that neither his trial nor sentencing counsel was ineffective, (2) applied the Strickland¹ standard to his attempt to withdraw his plea and (3) failed to address his claim that the state lacked a factual basis for charging him with the crime to which he pleaded guilty. We affirm the judgment of the habeas court.

According to the factual statement made by the state at his sentencing hearing, the petitioner took a female to a reservoir in Killingly against her will where he forced her to engage in intercourse. The habeas court found that the attack occurred on July 12, 1994, and that the victim filed a complaint with the police on August 12, 1994. The police questioned the petitioner later that month, and he voluntarily gave a statement claiming that the intercourse was consensual. An arrest warrant was issued on March 15, 1995, and he was arrested on March 20, 1995. He then made a second statement in which he admitted that he had lied in his first statement and that the intercourse was forced.

On March 26, 1996, the day that his case was scheduled for jury selection, the petitioner pleaded guilty in accordance with North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), to sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1).² The trial court canvassed the petitioner in accordance with Practice Book § 711, now § 39-19, and found the plea to be "entered voluntarily and understandingly, and with the assistance of competent counsel."³ At the petitioner's request, the court scheduled sentencing for May 3, 1996.

Between the time of his plea and sentencing, the petitioner expressed dissatisfaction with his appointed counsel, Ramon J. Canning of the public defender's office for the judicial district of Windham, and his desire to fire Canning, to withdraw his plea and to have a trial on the merits. He unsuccessfully attempted to castrate himself to draw attention to his plight, and sent a letter to the court with copies to the news media, the governor and other public officials that detailed his situation and proclaimed his innocence. He also filed a grievance against Canning with the statewide grievance committee.⁴

At Canning's request, attorney Lawrence Bates, Jr., represented the defendant at the sentencing hearing. The trial court treated the petitioner's letter as a request to withdraw his plea in accordance with Practice Book § 720,⁵ now § 39-26. Because the court already had accepted the defendant's plea, the court analyzed whether the petitioner had proved one of the exceptions set forth in Practice Book § 721,⁶ now § 39-27, and concluded that the petitioner was seeking to withdraw his plea because of ineffective assistance of counsel. After a colloquy with Bates, the court denied the petitioner's request to withdraw his plea and imposed the previously agreed upon sentence of fifteen years incarceration, suspended after ten years, with five years probation.

On January 3, 2000, the petitioner filed a second amended habeas corpus petition, claiming that both Canning and Bates were ineffective. The habeas court conducted a trial and dismissed the petition in a memorandum of decision filed January 31, 2000. It concluded that Canning's performance was neither deficient nor prejudicial and Bates' performance, while deficient, was not prejudicial. A petition for certification to appeal from that court's decision was granted and this appeal followed. The petitioner largely restates the claims set forth in his habeas petition and asks that we reverse that court's decision and remand the case for trial.

We first note our standard of review. "In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary." (Internal quotation marks omitted.) Fuller v. Commissioner of Correction, 59 Conn. App. 302, 303, 755 A.2d 380, cert. denied, 254 Conn. 943, 761 A.2d 760 (2000).

With that standard in mind, we assess the petitioner's claims. Additional facts will be provided as necessary.

I

The petitioner's first two claims allege that both appointed counsel were ineffective because of their failure to investigate his case adequately. Arguing the inverse of the habeas court's findings, he claims that his first attorney's representation was deficient and prejudicial and that his second attorney's representation was prejudicial. We are not persuaded. Because a defendant often relies heavily on counsel's independent evaluation of the charges and defenses, the "right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction." Copas v. Commissioner of Correction, 234 Conn. 139, 154, 662 A.2d 718 (1995); Siemon v. Stoughton, 184 Conn. 547, 556-57 n.3, 440 A.2d 210 (1981). Regardless, "counsel need not track down each and every lead or personally investigate every evidentiary possibility before choosing a defense and developing it." (Internal quotation marks omitted.) Ostolaza v. Warden, 26 Conn. App. 758, 765, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992).

A habeas petitioner can "prevail on a constitutional claim of ineffective assistance of counsel [only if he can] establish both (1) deficient performance, and (2) actual prejudice." Bunkley v. Commissioner of Correction, 222 Conn. 444, 445, 610 A.2d 598 (1992); see also Phillips v. Warden, 220 Conn. 112, 132, 595 A.2d 1356 (1991). For ineffectiveness claims resulting from guilty verdicts, we apply the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Levine v. Manson, 195 Conn. 636, 639-40, 490 A.2d 82 (1985). For ineffectiveness claims resulting from guilty pleas, we apply the standard set forth in Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), which modified Strickland's prejudice prong. Copas v. Commissioner of Correction, supra, 234 Conn. 156-57.

To satisfy the performance prong, the petitioner must "show that counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington, supra, 466 U.S. 688; Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 206 (1989). A petitioner who accepts counsel's advice to plead guilty has the burden of demonstrating on habeas appeal "that the advice was not within the range of competence demanded of attorneys in criminal cases." Buckley v. Warden, 177 Conn. 538, 542, 418 A.2d 913 (1979), citing McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970). The range of competence demanded is "reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law." (Internal quotation marks omitted.) Buckley v. Warden, supra, 543. Reasonably competent attorneys may advise their clients to plead guilty even if defenses may exist. State v. Lopez, 197 Conn. 337, 343, 497 A.2d 390 (1985). A reviewing court must view counsel's conduct with a strong presumption that it falls within the "wide range of reasonable professional assistance" and that a tactic that appears ineffective in hindsight may have been sound trial strategy at the time. Strickland v. Washington, supra, 689.

To satisfy the prejudice prong, the petitioner must show a "reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, supra, 474 U.S. 59; Copas v. Commissioner of Correction, supra, 234 Conn. 156. "Reasonable probability" does not require the petitioner to show that "counsel's deficient conduct more likely than not altered the outcome in the case," but he must establish "a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, supra, 466 U.S. 693-94; Bunkley v. Commissioner of Correction, supra, 222 Conn. 446. The Hill court noted that "[i]n many guilty plea cases, the `prejudice' inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate ... the determination whether the error `prejudiced' the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial." Hill v. Lockhart, supra, 59; Copas v. Commissioner of Correction, supra, 156-57; Minnifield v. Commissioner of Correction, 62 Conn. App. 68, 72, 767 A.2d 1262, cert. denied, 256 Conn. 907, 772 A.2d 596 (2001). "A reviewing court can find against a petitioner on either ground, whichever is easier."...