Cruz v. Comm'r of Corr.
| Decision Date | 20 July 2021 |
| Docket Number | AC 43961 |
| Citation | 257 A.3d 399,206 Conn.App. 17 |
| Parties | Joshua CRUZ v. COMMISSIONER OF CORRECTION |
| Court | Connecticut Court of Appeals |
Deborah G. Stevenson, assigned counsel, for the appellant (petitioner).
Erika L. Brookman, senior assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Craig Nowak, senior assistant state's attorney, for the appellee (respondent).
The petitioner, Joshua Cruz, appeals, following the granting of his petition for certification to appeal, from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court erred by concluding that (1) Attorney William Gerace's allegedly deficient representation during plea negotiations was not prejudicial, and (2) Attorney Dean Popkin did not render ineffective assistance with respect to the petitioner's sentencing proceeding. We affirm the judgment of the habeas court.
The following facts and procedural history are relevant to our resolution of the petitioner's claims. On December 18, 2012, the petitioner pleaded guilty before the court, Clifford, J ., to murder in violation of General Statutes § 53a-54a (a).1 The charge stemmed from an incident that occurred in New Haven on August 14, 2010, during which the petitioner shot and killed the victim, Javier Cosme, in a parking lot following an altercation at a nightclub. The court canvassed the petitioner and found that his plea was made voluntarily and "understandably" with the assistance of competent counsel. In exchange for his plea of guilty, the court, pursuant to an agreement between the state and the petitioner, informed the petitioner that it would sentence him to between twenty-five and forty-two years of incarceration, with the opportunity to argue for less than the maximum of forty-two years.
Prior to the sentencing hearing, the petitioner filed a letter with the court seeking to withdraw his guilty plea. In his letter, the petitioner alleged that Attorney Gerace had coerced him to plead guilty and that he had been under the impression that he was pleading guilty to manslaughter rather than to murder. On February 22, 2013, the court held a hearing at which it continued the petitioner's sentencing until the petitioner secured a new attorney to represent him. Subsequently, Attorney Popkin was appointed to represent the petitioner. On April 11, 2013, Attorney Popkin filed a motion to withdraw the petitioner's guilty plea.
On May 30, 2013, the court held the sentencing hearing. During the hearing, the petitioner withdrew his motion to withdraw his guilty plea. The court then sentenced the petitioner to thirty-eight years of incarceration.
The petitioner subsequently filed a petition for a writ of habeas corpus. In his amended petition, the petitioner alleged that Attorney Gerace provided ineffective assistance during the plea negotiations by (1) misadvising him as to the negotiated plea agreement and his sentence exposure, (2) failing to make a thorough investigation of the facts, (3) failing to consult adequately with him prior to his guilty plea, and (4) failing to present favorable information to the state and the court. The petitioner further alleged that Attorney Popkin provided him with ineffective assistance during sentencing by (1) failing to present any mitigating evidence to the court prior to sentencing and (2) failing to advocate zealously for him to secure the lowest sentence contemplated by the plea agreement. The habeas court, Bhatt, J ., denied the habeas petition. The court concluded that the petitioner had failed to prove that he was prejudiced by Attorney Gerace's performance and that he had failed to prove both deficient performance and prejudice regarding Attorney Popkin's representation. The petitioner filed a petition for certification to appeal, which the court granted, and this appeal followed. Additional facts will be set forth as necessary.
The petitioner's first claim is that the habeas court erred in concluding that he was not prejudiced by Attorney Gerace's allegedly inadequate representation of him during plea negotiations. We disagree.
The following additional procedural history is relevant to our review. During the habeas trial, the petitioner testified as to the following. On December 5, 2012, Attorney Gerace told him that the state had offered the petitioner a plea bargain for forty-five years, and he advised the petitioner not to take it because "it was too much time ...." Two individuals from Attorney Gerace's office subsequently visited the petitioner in prison and indicated that there was an offer to resolve the case with a plea for manslaughter for a term of forty years of incarceration. They did not, however, review police reports with the petitioner or discuss any defenses with him. Attorney Gerace later spoke with the petitioner over the phone and told him that he needed to make a decision with respect to the offer before the December 18, 2013 court date and that the state had reduced his charge to manslaughter. On December 18, 2013, the petitioner met with Attorney Gerace at the courthouse. During the meeting, Attorney Gerace was "aggressive" with the petitioner, yelled at him, "you did it; they've got you on video; you have to plead guilty," and stated that the only way forward was to "take the charges away from the prosecutor and put it in the hands of the judge and just say yes to all the questions." Following his guilty plea, the petitioner tried to contact Attorney Gerace a number of times to discuss his plea because he thought that he would be pleading guilty to manslaughter rather than murder. After he failed to reach Attorney Gerace, the petitioner wrote a letter to the court asking to withdraw his plea and filed a grievance complaint against Attorney Gerace.
Thereafter, Attorney Popkin was appointed to represent the petitioner. He visited the petitioner several times to discuss his motion to withdraw his guilty plea. Attorney Popkin told him that he was "not going to win the motion because [the petitioner] had answered yes to all of the judge's questions." He also told the petitioner that he would lose if he went to trial. As a result, the petitioner agreed to withdraw his motion to withdraw his plea.
At the habeas trial, Attorney Popkin testified that he had advised the petitioner that the charge of murder carried a mandatory minimum sentence of twenty-five years of incarceration and that he also had discussed the petitioner's case with him generally, including possible defenses. He further testified that he told the petitioner that, if he withdrew his guilty plea, the petitioner would be facing a murder charge and a trial and that Attorney Popkin "thought it highly likely that he would be found guilty, and that he would receive a sentence of significantly longer than what he would get in pursuing the plea bargain." As a result, Attorney Popkin recommended that the petitioner withdraw his motion to withdraw his guilty plea.
The prosecutor, Michael Pepper, also testified at the petitioner's habeas trial. He testified that he decided to charge the petitioner with murder after reviewing videos of the incident, police reports, and statements from a number of witnesses. He never contemplated reducing the charge to manslaughter because the state's case "was remarkably strong" and the probability of conviction was "pretty high ...." As a result of the nature of the charges against the petitioner, he faced up to seventy years of incarceration if found guilty.
On January 6, 2020, the habeas court issued its memorandum of decision. With respect to the petitioner's ineffective assistance of counsel claim against Attorney Gerace, the court addressed only the prejudice prong of the test set forth in Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and assumed, without deciding, that the deficient performance prong had been satisfied. The court concluded that the petitioner had failed to prove that he was prejudiced by any claimed deficient performance because he could not prove that, but for Attorney Gerace's allegedly deficient performance, he would have rejected the plea bargain and proceeded to trial. The court reasoned that the petitioner's ability to prove prejudice was "critically undermined by the fact that he did seek to withdraw his plea, was appointed alternate counsel who reviewed the entire file with the petitioner and provided him with the same advice—that he should accept the offer and not risk a trial—and then, based on that advice, the petitioner did indeed continue with his plea of guilty and eschewed a trial." The habeas court further noted that the evidence against the petitioner was overwhelming, as "at least three witnesses [had] identified him as the shooter, his DNA was on the murder weapon and the victim was shot five times at close range."2 Moreover, as to the petitioner's allegation that Attorney Gerace failed to present favorable information to the state and the court during plea negotiations in an effort to obtain a lesser charge or sentence, the court found that the petitioner could not prove prejudice. The court found that it was clear that the state was never going to reduce the charge to manslaughter and that the petitioner had failed to prove that a lesser sentence for the murder charge would have been available. Accordingly, the court concluded that the petitioner had failed to prove that he was prejudiced by any allegedly deficient performance of Attorney Gerace.
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