Cruz v. Commissioner of Correction
| Decision Date | 06 January 2020 |
| Docket Number | CV164007793S |
| Court | Connecticut Superior Court |
| Parties | Joshua Cruz v. Commissioner of Correction |
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Bhatt, Tejas, J.
The petitioner seeks habeas corpus relief on the grounds that his second attorney was ineffective at the time he entered his plea of guilty and his third attorney was ineffective at the time of sentencing. The petitioner cannot prove that he was prejudiced by any assumed deficient performance of either counsel and therefore, the petition is DENIED.
Joshua Cruz was arrested on August 14, 2010 and charged in Docket Number CR10-0108713-T with murder in violation of General Statutes § 53a-54a, carrying a pistol without a permit in violation of General Statutes § 29-28, and possession of a controlled substance in violation of General Statutes § 21a-279(c). He was also charged in a Part B information with a violation of General Statutes § 53-202k, which alleged that he was armed with a firearm during the commission of a Class A, B or C felony. He was assigned Attorney Thomas Farver, who represented him from sometime in September 2010 until October 31, 2012. His family hired Attorney William Gerace to represent him thereafter. While represented by Attorney Gerace, the petitioner entered a plea of guilty to the charge of murder before the trial court, Clifford, J., on December 18, 2012. On January 30, 2013, the petitioner wrote a letter to Judge Clifford indicating that he wished to withdraw his guilty plea. On February 22, 2013, a date originally scheduled for the petitioner’s sentencing, Judge Clifford appointed assigned counsel to represent the petitioner and continued the matter. Attorney Dean Popkin thereafter filed his appearance and represented the petitioner. Attorney Popkin filed a motion to withdraw the guilty plea on behalf of the petitioner on April 11, 2013. On May 30, 2013, the motion to withdraw the guilty plea was withdrawn and represented by Attorney Popkin, the petitioner proceeded to sentencing. On that day, Judge Clifford sentenced the petitioner to thirty-eight years to serve.
The petitioner then filed the instant petition for writ of habeas corpus on January 21, 2016 and counsel filed the operative amended petition on June 29, 2018. The court heard evidence over the course of two days from Attorneys Farver, Gerace and Popkin. In addition, the court heard from Dr. Andrew Meisler, a forensic psychologist; Attorney Michael Pepper, the prosecutor in the petitioner’s case; and Attorney Pat Brown, the petitioner’s legal expert. The petitioner testified with the assistance of a Spanish speaking interpreter. The parties submitted various exhibits and both parties submitted post-trial briefs.
The petitioner is Spanish speaking and requires the assistance of a Spanish speaking interpreter. Attorney Farver received voluminous discovery from the state and discussed it with the petitioner. He had relevant documents translated into Spanish for the petitioner and reviewed with him a surveillance video of the parking lot which captures the incident. Attorney Farver had repeated and frequent contact with the petitioner during which they discussed the case. At the time the petitioner was represented by Attorney Farver, there had been no firm discussions about a plea offer.
On August 14, 2010, the petitioner, along with Jose Ramos, William Rivera, Ignacio Bruno and Obryant Ruiz went to the Gotham Citi nightclub in New Haven. They drove down from Hartford in two cars: a Mazda and a BMW. Prior to going to the nightclub, they stopped at a convenience store, where Ramos observed the petitioner take a firearm from his waistband and put it in the trunk of the Mazda. Rivera told police that the petitioner placed two firearms in the trunk. Meanwhile, the victim Javier Cosme, his brother Justin and Justin’s girlfriend were also at the nightclub.
While at the nightclub, one of the petitioner’s friends said something inappropriate to Justin’s girlfriend, which caused a confrontation. Bruno "cold-cocked" Justin causing the victim to intervene on behalf of his brother. This incident inside the nightclub was captured on a video surveillance camera. The petitioner and his friends were ejected from the club and can be seen on another video surveillance camera walking back to their cars. An independent witness overheard Ramos suggest that the group retrieve firearms and shoot the victim and his brother. Rivera opened the trunk to allow access to the weapons. Ramos told police that the petitioner asked him to retrieve one of the guns and give it to him, which Ramos did. The petitioner retrieved one weapon and Ruiz the other. Bruno then ran across the parking lot when he saw the victim at the other end. Rivera, Ramos, Ruiz and the petitioner followed. A fight ensued and Rivera, Ramos and Ruiz all observed the petitioner shoot the victim several times even as the victim fell to the ground. There were other independent witnesses who also identified the petitioner as the shooter. The victim was shot five times. Most of this incident was also captured on a video surveillance camera. The weapon that fired the fatal shots was ultimately recovered and the petitioner’s DNA was found on its handle.
Attorney Gerace began his representation of the petitioner on or about October 31, 2012. Attorney Gerace recalled next to nothing about his representation of the petitioner in this case. As of November 9, 2012, Attorney Gerace had not received the petitioner’s "entire file." There were three pretrial dates from the filing of Attorney Gerace’s appearance to the date of the petitioner’s plea: November 8, 2012, December 5, 2012 and December 18, 2012. The parties discussed the case with Judge Clifford on all three of those dates. Two members of Attorney Gerace’s office did meet with the petitioner at the correctional facility where the petitioner was being held to discuss the case with him. Attorney Gerace could not remember whether he met with the petitioner at the correctional facility or spoke to him on the phone at all. However, in a letter to the petitioner dated December 13, 2012, Attorney Gerace makes reference to lengthy discussions relating to the law as it applies to the petitioner’s case and his advice that proceeding to trial would not be fruitful given that a best case scenario would be a conviction for manslaughter with a firearm and the attendant firearms charges. He negotiated a sentence "in the range of [forty] years" and, in effect, advised the petitioner to accept the offer.
The offer negotiated by Attorney Gerace called for a maximum sentence of forty-two years’ incarceration with a right to argue down to twenty-five years’ incarceration in exchange for a guilty plea to murder.
Attorney Popkin met with the petitioner at the correctional facility three times. On two of those occasions he was accompanied by a Spanish speaking interpreter; on the last occasion he was not. In addition to meeting the petitioner at the correctional facility, he met with the petitioner on several occasions at the courthouse. Each of these times he was accompanied by a Spanish speaking interpreter. During these meetings, he discussed the evidence in the case, which included police reports and witness statements, with the assistance of a Spanish speaking interpreter. He further discussed which course of action would be in the petitioner’s best interests. He reviewed the minimum and maximum punishments with the petitioner. He reviewed the state’s evidence and any potential defenses the petitioner might have. He discussed self-defense with the petitioner and told the petitioner that in his opinion it was not a successful defense based on the evidence. He discussed the defense of diminished capacity at length with the petitioner and similarly opined that it would not be a successful defense. He was aware of the petitioner’s contention that the petitioner, although admitting that he shot the victim, did not intend to kill him. He discussed this with the petitioner and explained that the evidence would make it difficult to convince a jury that he lacked the requisite intent.
He based this on the surveillance video that shows the petitioner running from the car he arrived in at one end of the parking lot, to the other end where the victim was and the fact that the petitioner was alleged to have shot the victim approximately five times. Attorney Popkin also discussed the other evidence the state would offer at trial: that the petitioner’s DNA was on the gun, that the gun matched the bullets recovered from the decedent, and witness statements from other individuals at the scene. Based on his review of the evidence, he advised the petitioner to proceed to sentencing and not risk a trial.
Although Attorney Popkin filed a motion to withdraw the guilty plea on behalf of the petitioner on April 11, 2013, he advised the petitioner that if the plea was withdrawn the petitioner would be facing trial on a murder charge. Attorney Popkin thought it "highly likely" that a jury would find the petitioner guilty, and was concerned that he would receive a significantly longer sentence than the plea offer contemplated. When he met with the petitioner the day before they were to return to court, he advised the petitioner to forgo the motion to withdraw the guilty plea and explained why he believed that was the best course of action. Although this conversation took place without a Spanish speaking interpreter, Attorney Popkin had no concerns...
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