Barlow v. Comm'r of Corr.

• Citation: 343 Conn. 347,273 A.3d 680
• Decision Date: 17 May 2022
• Docket Number: SC 20591
• Parties: Alison BARLOW v. COMMISSIONER OF CORRECTION
• Court: Supreme Court of Connecticut

343 Conn. 347

273 A.3d 680

Alison BARLOW

v.COMMISSIONER OF CORRECTION

SC 20591

Supreme Court of Connecticut.

Argued November 19, 2021

Officially released May 17, 2022

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Maureen T. Platt, state's attorney, and Eva Lenczewski, former supervisory assistant state's attorney, for the appellant (respondent).

Naomi T. Fetterman, assigned counsel, for the appellee (petitioner).

Robinson, C. J., and McDonald, D'Auria, Mullins, Kahn and Ecker, Js.

ECKER, J.

The habeas court granted the petition for a writ of habeas corpus filed by the petitioner, Alison Barlow, after determining that the petitioner had suffered prejudice as a result of the ineffective assistance rendered by his trial counsel, who failed to provide the petitioner with professional advice and assistance during pretrial plea negotiations. The respondent, the Commissioner of Correction, appeals from the judgment of the habeas court, claiming that the habeas court improperly found that it was reasonably probable that the petitioner would have accepted the trial court's pretrial plea offer but for the ineffective assistance of his trial counsel. We affirm the judgment of the habeas court.

The record reveals the following relevant facts and procedural history. In 1997, the petitioner was charged with attempt to commit murder in violation of General Statutes (Rev. to 1997) § 53a-54a and General Statutes § 53a-49 (a) (2), conspiracy to commit murder in violation of General Statutes (Rev. to 1997) § 53a-54a and General Statutes § 53a-48 (a), two counts of assault in the first degree in violation of General Statutes (Rev. to 1997) § 53a-59 (a) (1), and alteration of a firearm identification number in violation of General Statutes (Rev. to 1997) § 29-36. Prior to trial, the state offered the petitioner a plea deal of eighteen years of incarceration, execution suspended after fourteen years. The trial court, Damiani, J., offered the petitioner a plea deal of fifteen years of incarceration, execution suspended after nine years. On April 21, 1997, the trial court conducted a brief, on-the-record proceeding, at which it memorialized the state's offer, the trial court's offer, and the petitioner's preference for "something after six years." The court also informed the petitioner at that time that the plea deal was available for one day only, after which his case would be placed on the trial list. The petitioner did not accept the trial court's pretrial plea offer.

The petitioner subsequently asked his trial counsel to negotiate a plea deal that would require him to serve only six or seven years of incarceration. In the mean-time, notwithstanding the initial characterization of the trial court's plea deal as a one day only offer, the offer of nine years to serve remained in effect for approximately one year, until the start of trial. Prior to the start of trial, Judge Damiani repeatedly asked trial counsel if the petitioner intended to accept the court's offer and plead guilty, but the petitioner did not accept the nine year offer.

During the petitioner's criminal trial, the jury was presented with substantial evidence to support a conviction. Demetrice Chapman, the petitioner's girlfriend, and Kyle Dunn, the petitioner's friend, gave statements to the police indicating that the petitioner was in the car involved in the drive-by shooting of the victim. The state's forensic expert testified that the shell casings found at the scene of the crime matched the pistol discovered in the petitioner's car. Furthermore, as accurately described by the habeas court, "[the petitioner's] codefendants, Miguel Torres and Jose Rodriguez, gave statements to the police implicating themselves and [the petitioner]. These statements were internally consistent and also consistent with the physical evidence and the state's theory of the case. ... Both [codefendants] cooperated with the prosecution in [the petitioner's] case but ultimately were not called to testify at [his] trial." The jury found the petitioner guilty of the crimes charged, and the trial court, Gill, J. , sentenced him to thirty-five years of incarceration. The Appellate Court affirmed the petitioner's judgment of conviction. See State v. Barlow , 70 Conn. App. 232, 249, 797 A.2d 605, cert. denied, 261 Conn. 929, 806 A.2d 1067 (2002).

The petitioner filed two unsuccessful habeas petitions. At issue in the present appeal is the petitioner's third habeas petition, which alleges that his trial counsel—then Attorney, now Judge, Sheridan L. Moore—rendered ineffective assistance in connection with the pretrial plea negotiations.

The habeas court, Sferrazza, J. , held a trial on the petitioner's third habeas petition, at which trial counsel testified that she refrained from giving the petitioner any advice regarding the trial court's pretrial plea offer. Trial counsel stated that her practice was to inform defendants about the facts of the offer but not to recommend a specific course of action or to assist a petitioner in weighing the options. Trial counsel could not recall whether the petitioner ever told her directly that he would not accept a plea offer, but she explained that she would not have gone to trial unless the petitioner had rejected the trial court's offer. The petitioner testified that trial counsel did not advise him of the risks and benefits of accepting any of the plea bargain offers, the strengths and weaknesses of the state's case, or any potential defense strategies. He also testified that he would have pleaded guilty and accepted the trial court's offer instead of going to trial if his trial counsel had advised him that his six year counterproposal was not reasonable.

Judge Sferrazza dismissed in part and denied in part the petition after finding that trial counsel's advice did not amount to ineffective assistance of counsel. The Appellate Court reversed in part the judgment of the habeas court, concluding that trial counsel's "performance was deficient because she did not give the petitioner her professional advice and assistance concerning, and her evaluation of, the trial court's plea offer." Barlow v. Commissioner of Correction , 150 Conn. App. 781, 802, 93 A.3d 165 (2014). Because the habeas court made no findings concerning prejudice under the second prong of Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the Appellate Court remanded the case to the habeas court "to determine whether it is reasonably likely that the petitioner would have accepted the [plea] offer had he received adequate advice from [trial counsel]." Barlow v. Commissioner of Correction , supra, at 804, 93 A.3d 165.

On remand, Judge Sferrazza did not conduct an evidentiary hearing but, instead, concluded, on the basis of the evidence adduced at the prior habeas trial, that the petitioner had failed to prove prejudice. On the granting of certification, the petitioner appealed to the Appellate Court, which reversed the judgment of the habeas court on the grounds that Judge Sferrazza was statutorily prohibited from trying the case on remand following reversal and that a new habeas trial before a different judge was required. See Barlow v. Commissioner of Correction , 166 Conn. App. 408, 421, 431, 142 A.3d 290 (2016), appeal dismissed, 328 Conn. 610, 182 A.3d 78 (2018).

Judge Bhatt presided over the new habeas trial on the issue of prejudice. The evidence presented at this trial included the transcript of the first habeas trial before Judge Sferrazza, the testimony of a legal expert, Attorney Brian Carlow, and the testimony of the petitioner. Carlow testified that competent counsel would have advised the petitioner that the case against him was strong and that the trial court's offer of nine years of incarceration was extremely favorable given the lack of any viable defense and the petitioner's criminal record.

According to Carlow, trial counsel should have provided the petitioner with additional context to explain to him that an offer of "six or seven [years was] not on the table," that "Judge Damiani had settled in on nine years," and that, "[u]nless something new, unless something could be shown to him that he didn't already know, he was not going to reduce that nine years." Additionally, Carlow opined that trial counsel should have explained to the petitioner that, if he proceeded to trial, he ran "an exceedingly strong risk of [being sentenced to] multiples of those nine years," for example, "a sentence in the thirties or worse." Judge Bhatt determined that Carlow testified credibly about the advice a reasonably competent criminal defense attorney would have given a defendant in the petitioner's position. Judge Bhatt also found that "[a]t no time did trial counsel tell [the petitioner] that his proposal for six or seven years’ incarceration was not going to be accepted by the court, [or] that, in light of all the evidence the state possessed, the offer of nine years was a favorable offer. ... As trial counsel testified, and the Appellate Court determined, trial counsel provided no assistance, advice or guidance to [the petitioner] regarding his likelihood of success at trial or the likely potential sentence he faced if he [would have gone] to trial and whether accepting the court indicated sentence [would have been] in his best interest." (Citation omitted.)

With respect to the petitioner's testimony, Judge Bhatt found that the petitioner "testified credibly that, had counsel discussed the strengths and weaknesses of the case against him and given him advice concerning the reasonableness of the nine year offer, he would have accepted it. Had he been advised that his six year counterproposal was not feasible and that the court's offer was reasonable, he would have accepted the court's offer." Judge Bhatt further credited the petitioner's testimony that, if trial counsel had informed him that his codefendants’ statements to...