Carrasquillo v. Warden

• Decision Date: 30 November 2018
• Docket Number: CV144005753S
• Court: Connecticut Superior Court
• Parties: Pedro CARRASQUILLO #312515 v. WARDEN

Pedro CARRASQUILLO #312515 v. WARDEN

No. CV144005753S

Superior Court of Connecticut, Judicial District of Tolland, Rockville, Geographic Area 19

November 30, 2018

UNPUBLISHED OPINION

OPINION

Bhatt J.

The petitioner makes two allegations: first, that trial counsel Diane Polan^[1] was ineffective for failing to properly advise him about whether he should accept or reject a plea agreement and further for failing to adequately cross examine witnesses at trial; and second, that his rejection of the plea agreement was not knowingly made and thus in violation of his due process rights. For the reasons set forth below, the petition is DENIED.

I. FACTUAL BACKGROUND

Pedro Carrasquillo was arrested and charged with, inter alia, murder in violation of General Statutes § 53a-54a. Because the defendant was fifteen years old at the time of the offense, his case was automatically transferred from the juvenile docket to the regular criminal docket. A jury found him guilty of murder, the court found him guilty of carrying a pistol without a permit and the trial court thereafter sentenced him to thirty-five years incarceration with a mandatory minimum prison term of twenty-five years. He appealed the murder conviction to our Supreme Court, alleging that the mandatory minimum sentence violated the cruel and unusual punishments clause of the eight amendment to the United States Constitution and that his right to a fair trial was violated when the state’s attorney, during closing argument, improperly attributed a motive to him that was unsupported by the evidence. Our Supreme Court affirmed the convictions. State v. Carrasquillo, 290 Conn. 209 962 A.2d 772 (2009).

That decision summarizes the salient facts underlying his convictions as follows:

In the early evening of June 16, 2003, the victim, seventeen-year-old Chauncey Robinson, drove his car to the Moon Mart convenience store on Whalley Avenue in New Haven to purchase cigarettes and candy. Samuel Redd, who was shopping in a nearby shoe store, saw the victim get out of his car and go into the convenience store. Although Redd did not know the victim personally, it was his understanding that the victim had fired a gun in Redd’s neighborhood, which angered Redd.

When the victim exited the convenience store, Redd, who was wearing a red shirt, followed him to his car with the intent of starting a fight. The victim, however, was able to enter his car before Redd could catch up to him. When Redd reached the victim’s car, he kicked in the driver’s side window and then fled. As Redd started to run away, he noticed the defendant, with whom Redd was on friendly terms, walking across Whalley Avenue in the direction of the victim’s car. A few moments later, Redd heard gunshots.

At the same time that Redd was running from the victim’s car, thirteen-year-old L.C. was coming out of a restaurant located across the street from the victim’s parked car. He observed the defendant, whom he knew by name because they attended the same middle school, cross Whalley Avenue and head toward the victim’s car. Shortly thereafter, L.C. heard gunshots and started running toward his home. As he was running, he looked back and saw the defendant fire several shots into the front driver’s side window of the victim’s car.

When L.C. arrived home, he told his mother what he had seen, and she immediately telephoned the police. Ismail Nasser, the owner of the Moon Mart convenience store where the victim had purchased cigarettes and candy, also heard the gunshots and ran outside. When he arrived, he observed two people running away. One of them was wearing a red shirt and the other was carrying a gun in his hand. He also observed the victim, who had been shot, slouched in the front seat of his car.

State v. Carrasquillo, supra, 290 Conn. 211-13. In his second amended petition filed on April 24, 2018, the petitioner alleged that Attorney Polan was ineffective in her representation during the pretrial and trial stages and also that his rejection of a plea offer was not knowingly made and, thus, violated due process. The respondent denied the allegations and raised defenses that the petition was barred by the doctrine of laches and count two failed to state a claim.

II. FINDINGS OF FACT

The petitioner was fifteen at the time of his arrest. At all times relevant to the petition he was represented by Attorney Diane Polan, who passed away in 2016. Because of his age, his mother and his step-father were appointed as guardians ad litem at various times during the proceedings. He was offered a deal which would have required him to plead guilty to murder in exchange for a sentence of twenty-five years to serve. He rejected that offer and proceeded to trial. He was convicted and eventually appealed his convictions, which were affirmed by our Supreme Court.

Plea Bargaining. In June 2004, Attorney Polan informed the petitioner of the plea offer in a letter. The court, Fasano, J., indicated it would impose a sentence of twenty-five years to serve. State’s Attorney Michael Dearington conveyed the court’s intention to the victim’s family and his opinion that the offer was not unreasonable. The victim’s father was not happy with the offer and Attorney Dearington offered him the opportunity to voice his displeasure on the record.

The petitioner discussed the offer at-length with Attorney Polan, who requested several continuances from June 15, 2004, when the offer was extended, to November 4, 2004, when the offer was rejected, in order to allow the petitioner time to consider the offer. During their discussions considering the offer, they discussed the state’s evidence, which included witness statements and warrant affidavits, the pros and cons of going to trial, the weaknesses of the state’s case and defenses they could pursue. Attorney Polan informed him that murder carried a mandatory minimum sentence of twenty-five years. The petitioner was aware that murder was the most serious charge in Connecticut and that it carried a significant penalty. Attorney Polan advised him, however, that if he went to trial and lost, he could expect a sentence in the range of twenty-five to thirty-five years’ incarceration.

Attorney Polan advised him to make his decision based on how he felt "because at the end of the day, [he] was going to be the one serving the time or going to trial and going home, that not to listen to nobody because it was not their decision to make." She told him that while it was good to "take people’s opinions and ponder them," the final decision was his to make. She estimated the odds of winning after trial as "50/50." Neither his mother nor his step-father provided any input about whether he should accept or reject the offer. The petitioner decided to reject the offer and go to trial based on the inconsistencies of witness statements. This decision was bolstered by the existence of a witness, a Nathaniel Grayson, who had given a statement to the police indicating that the individual who kicked in the decedent’s car window was the one who shot him. This decision was made after a consideration of the terms of the offer, the evidence against him, the odds of success at trial and the potential sentence he might receive if he lost that trial. There is no dispute that had the petitioner accepted the offer, Judge Fasano would have accepted his plea and sentenced him in accordance with that offer, despite the victim’s father’s opposition to it.

The petitioner also testified as to the existence of a second offer, made during jury deliberation. He testified that he was brought into an ante room in the courtroom, where Attorney Polan told him that the state was inquiring whether he’d plead to the twenty-five years. His mother was present during this meeting but did not offer any advice. He told Attorney Polan that he would not accept this offer and she did not pursue it at length because she already knew that he was not going to take this offer.

Attorney Dearington testified that there was no second offer and it was not reflected in his file. Respondent’s Exhibit A. It was his practice to make notes of all offers and something as significant as an offer to resolve the case mid-trial would have been noted.

Attorney Polan, of course, was not available to testify. The petitioner also did not call his mother or his step-father to testify.

Consultation with a medical professional. The petitioner testified that Attorney Polan did not suggest to him that she would like to have him evaluated to determine if he was capable of making an informed decision, given his young age. Attorney Polan did, however, file several motions to have the matters dismissed or returned to the juvenile court. Petitioner’s Exhibit 9 ("P. Ex.__") details Attorney Polan’s challenge to the petitioner’s prosecution in adult court and his exposure to the mandatory minimum sentence as being in violation of the eighth amendment. in that memorandum, she relied on Roper v. Simmons, 543 U.S. 551, 125 S.Ct 1183, 161 L.Ed.2d 1 (2005). Roper was released after the completion of jury selection in the petitioner’s case, but before the start of evidence. P. Ex. 9 makes clear that Attorney Polan was well-versed in the latest scientific literature on the topic of the immaturity of the juvenile brain and the diminished responsibility of juvenile offenders in light of that level of development. Further, as evidenced by the arguments at sentencing, Attorney Polan hired a psychiatrist who met with and evaluated the petitioner on three occasions. State v. Carrasquillo, supra, 290 Conn. 215. The trial court explicitly relied on the arguments of Attorney Polan in determining the appropriate sentence, mitigating the punishment based on his age. Id., 216. It is worth noting that the...