Davis v. Comm'r of Corr.

• Decision Date: 17 November 2015
• Docket Number: No. 19286.,19286.
• Citation: 319 Conn. 548,126 A.3d 538
• Parties: Douglas DAVIS v. COMMISSIONER OF CORRECTION.
• Court: Connecticut Supreme Court

319 Conn. 548

126 A.3d 538

Douglas DAVIS

v.COMMISSIONER OF CORRECTION.

No. 19286.

Supreme Court of Connecticut.

Argued March 25, 2015.

Decided Nov. 17, 2015.

Naomi T. Fetterman, with whom was Aaron J. Romano, Bloomfield, for the appellant (petitioner).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Adrienne Maciulewski, deputy assistant state's attorney, for the appellee (respondent).

ROGERS, C.J., and PALMER, ZARELLA, McDONALD, ESPINOSA and ROBINSON, Js.

ROBINSON, J.

The sole issue in this certified appeal is whether a criminal defendant received the effective assistance of counsel when, at sentencing, defense counsel agreed with the prosecutor's recommendation that the trial court should impose the maximum sentence allowed under a plea agreement even though that agreement contained a provision entitling defense counsel to advocate for a lesser sentence. The petitioner, Douglas Davis, appeals, upon our grant of his petition for certification,¹ from the judgment of the Appellate Court affirming in part the habeas court's denial of his amended petition for a writ of habeas corpus.² Davis v. Commissioner of Correction, 147 Conn.App. 343, 358–63, 81 A.3d 1226 (2013). On appeal, the petitioner contends that the Appellate Court improperly concluded that the habeas court properly applied Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to his ineffective assistance claim, and thereby required him to prove that he was prejudiced by defense counsel's deficient performance. The petitioner argues that, because a complete breakdown in the adversarial process occurred, his claim instead is controlled by United States v. Cronic, 466 U.S. 648, 655–57, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), and prejudice should be presumed. We agree with the petitioner and, accordingly, reverse in part the judgment of the Appellate Court and remand the case for a new sentencing hearing.

The record reveals the following facts and procedural history. The petitioner was charged with murder in violation of General Statutes § 53a–54a and carrying a pistol without a permit in violation of General Statutes § 29–35. Defense counsel was appointed to represent the petitioner, and he negotiated for a plea to manslaughter in the first degree with a firearm in violation of General Statutes § 53a–55a and carrying a pistol without a permit in violation of § 29–35. The plea agreement stated that the petitioner would receive a total effective sentence of between twenty and twenty-five years imprisonment and that the state and the petitioner would have the right to argue for an appropriate sentence within that range. When the trial court, Damiani, J., accepted the petitioner's guilty plea, the court reminded the petitioner that defense counsel had "a right to argue" for a sentence beneath the twenty-five year cap. Thereafter, a presentence investigation (PSI) report was completed, which recommended a twenty-five year sentence.

At the petitioner's sentencing hearing, the trial court began by reciting the plea agreement's twenty year floor and twenty-five year cap, and reiterating that defense counsel had "a real right to argue" for the appropriate sentence. The trial court then stated that it was the "saddest thing" to sentence someone for killing another human being because "that person's life is ruined" and no number of years will satisfy the victim's family. The trial court also commented on the prevalence of guns in New Haven, adding, "it's a very sad, sad situation."

After making these preliminary remarks, the trial court turned to the prosecutor, who noted that the trial court echoed the feeling of the state, and introduced the victim's family members. Five family members poignantly described their loss. Immediately thereafter, the prosecutor stated the following: "Needless to say, the state recommends twenty-five years to serve." Defense counsel immediately responded as follows: "Your Honor, I agree with everything that everybody said so far, and I don't think there's anything left to say from my part. " (Emphasis added.) Defense counsel said nothing else on the petitioner's behalf. The trial court then imposed the maximum sentence of twenty-five years imprisonment.

The petitioner subsequently filed a petition for a writ of habeas corpus. Following the appointment of habeas counsel, he filed an amended petition claiming ineffective assistance of counsel. During the habeas trial, only the petitioner and defense counsel testified. Defense counsel explained that, because the petitioner had told him he only had a few drug convictions, he had negotiated for the plea agreement under the assumption that he could rely on the petitioner's lack of a substantial criminal record at the sentencing hearing. Upon reviewing the PSI at the sentencing hearing, however, defense counsel learned that the petitioner had a much more extensive criminal history than had previously been insinuated. Defense counsel testified that, under these circumstances, he believed the twenty-five year sentence was satisfactory.

The habeas court subsequently denied relief, determining that the petitioner failed to prove that he was denied effective assistance of counsel pursuant to the two-pronged test set forth in Strickland. Under the first prong, the habeas court determined that defense counsel's performance was resoundingly deficient, deeming it "wholly unreasonable and inexcusable" and "a poster child example of what constitutes ineffective assistance of counsel." Under the second prong, however, the habeas court determined that the petitioner had not shown actual prejudice—that is, a reasonable probability that he would have received a different sentence but for defense counsel's conduct. Accordingly, the habeas court rendered judgment denying the amended petition. The petitioner subsequently filed a petition for certification to appeal, which the habeas court denied.

The petitioner then appealed to the Appellate Court, which concluded in relevant part that the habeas court properly determined that the petitioner failed to prove actual prejudice under Strickland. See Davis v. Commissioner of Correction, supra, 147 Conn.App. at 363, 81 A.3d 1226 ; see also footnote 2 of this opinion. Accordingly, the Appellate Court affirmed the judgment of the habeas court.³ Davis v. Commissioner of Correction, supra, at 363, 81 A.3d 1226. This certified appeal followed. See footnote 1 of this opinion.

On appeal, the petitioner claims that defense counsel's agreement with the state's recommendation of the maximum sentence amounted to a complete breakdown in the adversarial process and, thus, pursuant to United States v. Cronic, supra, 466 U.S. 648, 104 S.Ct. 2039, prejudice should be presumed in connection with his ineffective assistance of counsel claim.⁴ The petitioner relatedly contends that defense counsel's agreement to the maximum sentence of twenty-five years cannot realistically be cast as a strategic decision. Specifically, the petitioner notes that his sentence already was capped at twenty-five years pursuant to the plea agreement, and that defense counsel had specifically bargained for, received, and advised the petitioner to accept an agreement containing a right to argue for less than the maximum sentence.

In response, the respondent, the Commissioner of Correction, disputes that defense counsel agreed with the prosecution's sentencing recommendation during the sentencing hearing. The respondent contends that defense counsel merely made a strategic decision to avoid engaging in argument given the heightened emotions in the courtroom, as well as the information already provided to the trial court in the PSI. The respondent asserts that defense counsel could not have said anything to make a difference in the trial court's sentencing and, therefore, defense counsel reasonably forfeited his right to argue. Citing Strickland v. Washington, supra, 466 U.S. 668, 104 S.Ct. 2052, the respondent emphasizes the presumption of competence afforded to defense counsel's conduct.

We begin by setting forth the applicable standard of review. The issue of whether the representation that a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. Id., at 698, 104 S.Ct. 2052. As such, the question requires plenary review "unfettered by the clearly erroneous standard." (Internal quotation marks omitted.) Gonzalez v. Commissioner of Correction, 308 Conn. 463, 470, 68 A.3d 624, cert. denied, ––– U.S. ––––, 134 S.Ct. 639, 187 L.Ed.2d 445 (2013).

The sixth amendment provides that in all criminal prosecutions, the accused shall enjoy the right to the effective assistance of counsel. U.S. Const. amend. VI. This right is incorporated to the states through the due process clause of the fourteenth amendment. See U.S. Const. amend. XIV, § 1 ; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Stricklandand Cronic set forth the framework for analyzing ineffective assistance of counsel claims. Under the two-pronged Strickland test, a defendant can only prevail on an ineffective assistance of counsel claim if he proves that (1) counsel's performance was deficient, and (2) the deficient performance resulted in actual prejudice. Strickland v. Washington, supra, 466 U.S. at 687, 104 S.Ct. 2052. To demonstrate deficient performance, a defendant must show that counsel's conduct fell below an objective standard of reasonableness for competent attorneys. Id., at 688, 104 S.Ct. 2052. To demonstrate actual prejudice, a defendant must show a reasonable probability that the outcome of the proceeding would have been different but for counsel's errors. Id., at 694, 104 S.Ct. 2052.

Strickland recognized, however, that "[i]n certain [s]ixth [a]mendment contexts, prejudice is presumed." Id., at 692, 104 S.Ct. 2052. In United States v. Cronic, supra, 466 U.S. at 659–60, 104 S.Ct. 2039, which...