Cimino v. Robinson
| Decision Date | 08 April 1986 |
| Docket Number | No. 3276,3276 |
| Citation | 6 Conn.App. 680,507 A.2d 486 |
| Parties | John Joseph CIMINO v. Carl ROBINSON, Warden (Somers Correctional Institution) |
| Court | Connecticut Court of Appeals |
Joan A. Leonard, Asst. Public Defender, with whom was Denise Drager, Asst. Public Defender, for appellant (plaintiff).
Walter D. Flanagan, State's Atty., with whom, on brief, was Brian E. Cotter, Asst. State's Atty., for appellee (defendant).
Before DUPONT, C.J., and BORDEN and BIELUCH, JJ.
This is an appeal by the plaintiff from the trial court's denial of his petition for a writ of habeas corpus. The writ, if granted, would have resulted in his immediate release from the Somers Correctional Institution. We conclude that the action of the court was correct.
The plaintiff was arrested on August 18, 1981, and charged with arson in the third degree, in violation of General Statutes § 53a-113, and burglary in the third degree, in violation of General Statutes § 53a-103. He pleaded not guilty to both counts in the mistaken belief that each charge was a class D felony, carrying a sentence of imprisonment for a term not exceeding five years, or a combined maximum of ten years imprisonment if the sentences were to run consecutively. General Statutes § 53a-35a. This erroneous assumption with regard to his possible maximum sentence was the result of an admitted mistake made by his trial counsel. Counsel had obtained his information regarding the applicable sentences from a recently outdated volume of the General Statutes. Hence, he failed to discover that arson in the third degree, § 53a-113, had been amended by Public Acts 1979, No. 79-570, § 5, to increase its classification for the purposes of sentence from a class D felony to a class C felony. The maximum prison sentence for a class C felony is ten years. General Statutes § 53a-35a(5). Thus, the maximum combined sentence to which the defendant was in fact exposed was fifteen, not ten years.
After a jury trial, the plaintiff was found guilty of both charges. He was sentenced to ten years imprisonment, execution to be suspended after seven years, with probation thereafter for a period of five years for his conviction of arson in the third degree, and to five years imprisonment for the conviction of burglary in the third degree, the two sentences to run concurrently for a total effective sentence of ten years, execution to be suspended after seven years, and probation thereafter for five years. It was at his sentencing that the plaintiff first discovered his counsel's misinformation concerning the maximum penalty for arson in the third degree. Notwithstanding the wrong ceiling on his maximum effective sentence, the plaintiff received a term of imprisonment three years less than what he was informed was possible if convicted of both crimes.
In his petition, the plaintiff claimed that he was denied effective assistance of counsel because of the mistaken advice he received from his attorney which prevented him from making an informed and intelligent decision regarding whether to plea bargain in exchange for the state's recommendation of a two year sentence, or to risk trial. The trial court concluded that the erroneous advice did not prejudice the plaintiff in any way since "[t]he sentence received was [three years] less than that which the petitioner was advised he could receive, albeit mistakenly." Additionally, it held that, from the evidence presented, "the court cannot conclude that the petitioner was represented by incompetent counsel." The plaintiff claims on appeal that the court erred (1) in its conclusion that his decision to plead not guilty was sufficiently intelligent and informed, and (2) in permitting his trial counsel to express an opinion as to whether the plaintiff would have elected to go to trial had he known of the correct exposure to sentence after trial. We find no error.
With regard to the plaintiff's first claim, the sentence imposed was three years shorter than the maximum sentence which he admits that he had been willing to risk all along. Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 80 L.Ed.2d 674, 696, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984). "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id., 698, 104 S.Ct. 2067. The trial court found that the plaintiff did not prove either that his counsel was ineffective or that he was prejudiced by trial. Even if we assume without deciding that the trial court was incorrect as to the denial to the defendant of effective assistance of counsel, we cannot disturb its finding that the erroneous advice did not prejudice the defendant.
Although the plaintiff was unwittingly exposed to the greater risk of being sentenced to a maximum of fifteen years imprisonment on the two charges, rather than the ten years which he was told was the maximum, the trial court did not find that, but for the error, the result would have been different. First, there was no finding or evidence that, had he accepted the state's offer of a two year maximum sentence, the court would have accepted the plea bargain and imposed that sentence. Second, the plaintiff expected concurrent sentences on the two charges against him, since these were his first felony offenses, but he knowingly risked that his sentences might run consecutively for a maximum of ten years even based only on the mistaken information. He gambled on a trial. He rolled the dice, hoping for less than the offered recommendation of two years against the odds of a possible ten years, but he did not lose all that he risked,...
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Alvernaz, In re
...result of the trial is no worse than the risk defendant's counsel advised possible, there is no prejudice (see Cimino v. Robinson (1986) 6 Conn.App. 680, 507 A.2d 486). Also, petitioner's argument would be defeated could it be shown that the consummation of the bargain was unlikely even had......
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Johnson v. Commissioner of Correction
...during plea negotiations he would have accepted the offer and actually received the allegedly proffered sentence. In Cimino v. Robinson, 6 Conn.App. 680, 683, 507 A.2d 486, cert. denied, 200 Conn. 802, 509 A.2d 517 (1986), we held that "there was no finding or evidence that, had [the petiti......
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Bertotti v. Comm'r of Corr.
...accepted [44 A.3d 895]the offer and that the court would have rendered judgment in accordance with that offer. See Cimino v. Robinson, 6 Conn.App. 680, 683, 507 A.2d 486, cert. denied, 200 Conn. 802, 509 A.2d 517 (1986).” Sanders v. Commissioner of Correction, 83 Conn.App. 543, 552, 851 A.2......
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Sanders v. Commissioner of Correction
...he would have accepted the offer and that the court would have rendered judgment in accordance with that offer. See Cimino v. Robinson, 6 Conn. App. 680, 683, 507 A.2d 486, cert. denied, 200 Conn. 802, 509 A.2d 517 The respondent argues that the petitioner failed to prove that he would have......