Ebron v. Comm'r of Corr.

• Citation: 307 Conn. 342,53 A.3d 983
• Decision Date: 23 October 2012
• Docket Number: No. 18627.,18627.
• Court: Supreme Court of Connecticut
• Parties: Ahmed Kenyatta EBRON v. COMMISSIONER OF CORRECTION.

307 Conn. 342

53 A.3d 983

Ahmed Kenyatta EBRON

v.COMMISSIONER OF CORRECTION.

No. 18627.

Supreme Court of Connecticut.

Argued May 17, 2012.

Decided Oct. 23, 2012.

Michael Proto, assistant state's attorney, with whom, on the brief, was Michael Dearington, state's attorney, for the appellant (respondent).

Jennifer Bourn, assistant public defender, for the appellee (petitioner).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH and VERTEFEUILLE, Js.

ZARELLA, J.

The petitioner, Ahmed Kenyatta Ebron, pleaded guilty to a variety of criminal charges on the advice of his trial counsel. After he was sentenced, he filed a petition for a writ of habeas corpus, claiming, inter alia, that trial counsel had failed to advise him adequately regarding the state's offer of a plea bargain and that this failure constituted ineffective assistance of counsel. The habeas court rendered judgment granting the petition and ordered the trial court to vacate the petitioner's guilty plea and to allow the petitioner the opportunity to accept the original plea offer. Upon the habeas court's granting of her petition for certification to appeal, the respondent, the commissioner of correction, appealed to the Appellate Court, which affirmed the habeas court's judgment. Ebron v. Commissioner of Correction, 120 Conn.App. 560, 592, 992 A.2d 1200 (2010). We then granted the respondent's petition for certification to appeal to this court, limited to the following questions: First, “[d]id the Appellate Court properly affirm the habeas court's judgment that the petitioner received ineffective assistance of counsel in his criminal trial?” Ebron v. Commissioner of Correction, 297 Conn. 912, 995 A.2d 954 (2010). Second, “[i]f the Appellate Court properly affirmed the judgment, did the Appellate Court also properly affirm the habeas court's order for relief?” Id. at 913, 995 A.2d 954. We answer the first question in the affirmative and the second question in the negative. Accordingly, we reverse in part the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following facts and procedural history. “In docket number CR–02–12149, the petitioner [was] convicted of [conspiracy to possess] narcotics with intent to sell. On May [307 Conn. 345]20, 2003, he was sentenced to eight years incarceration, suspended after twenty months, followed by a three year conditional discharge. In 2005, the state charged the petitioner with various criminal offenses in several informations. Specifically, in docket number CR–05–40965, the state charged the petitioner with two counts of attempt to commit assault of [public safety personnel] in violation of General Statutes [ (Rev. to 2005) § 53a–167c and General Statutes § 53a–49], one count of possession of a dangerous weapon in violation of General Statutes § 53–206 and one count of disobeying the signal of a police officer in violation of General Statutes [Rev. to 2005] § 14–223(a). In docket number CR–05–41361, the state charged the petitioner with [inter alia] assault in the third degree in violation of General Statutes § 53a–61. Finally, in docket number CR–05–42862, the state charged the petitioner with assault in the third degree in violation of § 53a–61. On the basis of these charges, the petitioner was exposed to a period of incarceration of thirty-five years. The petitioner also faced a term of incarceration of six years and four months due to the revocation of the conditional discharge from his earlier conviction. His total exposure for all of the charges ... was forty-one years and four months of incarceration.

“Attorney Richard Silverstein represented the petitioner at all relevant times. Silverstein discussed the charges against the petitioner with assistant state's attorney John P. Doyle, Jr. Doyle offered to recommend an effective sentence of six years incarceration if the petitioner pleaded guilty to a violation of the conditional discharge, at least one count of attempt to commit assault of [public safety personnel] and several misdemeanors. Silverstein informed Doyle that he had discussed the offer with the petitioner and that the petitioner had rejected it. The petitioner then entered a plea of not guilty to all of the charges.

“Despite the petitioner's rejection, Doyle maintained the offer to the petitioner. At a pretrial conference on August 3, 2005, the state formally offered ten years incarceration, suspended after six years, with five years probation, in exchange for the petitioner's guilty plea. [Judge Alexander] indicated that the offer was appropriate, except that the proposed five years probation [should] be a conditional discharge.¹ Silverstein believed that this offer of six years incarceration was too high. He conveyed the offer to the petitioner and told him that he had three options: (1) accept the plea bargain offered by the state, with the sentence recommendation of ten years incarceration, suspended after serving six years; (2) proceed to a hearing on the violation of conditional discharge; or (3) enter an ‘open plea,’ or one with no recommendation from Doyle, before Judge Damiani. Silverstein informed the petitioner that he ‘probably would not do much worse with Judge Damiani, or words to that effect.’ ... Silverstein never recommended that the petitioner accept the plea bargain offered by [Doyle].

“On August 31, 2005, a hearing was scheduled for determination of the petitioner's violation of the conditional discharge. Silverstein informed Judge Damiani that the petitioner ... elected to enter an open plea. The petitioner then pleaded guilty, pursuant to the Alford doctrine,² to violation of a conditional discharge for a felony, two counts of assault in the third degree and one count of attempt to commit assault of [public safety personnel]. Following a thorough canvass of the petitioner, Judge Damiani accepted his plea and informed him that he could receive a sentence of eighteen years and four months incarceration. The court ordered a presentence investigation (PSI) report; ³ see General Statutes § 54–91a; ⁴ and continued the matter for sentencing.

“On December 5, 2005, the court sentenced the petitioner to six years incarceration for violation of the conditional discharge, a consecutive five years incarceration for attempt to commit assault of [public safety personnel] and ordered an unconditional discharge on the conviction [of] two counts of assault [in the third degree] for a net effective sentence of eleven years. The petitioner unsuccessfully moved for review of the sentence.

“The petitioner then [filed a petition] for a writ of habeas corpus. In his second amended petition, filed October 24, 2007, [the petitioner] alleged that Silverstein provided ineffective assistance of counsel by failing to advise him properly with respect to the state's offer of six years incarceration. He further alleged that Silverstein provided ineffective assistance with respect to the charge of attempt to commit assault of [public safety personnel]. Finally, the petitioner claimed that his [Alford ] plea ... was invalid and constituted a violation of his right to due process.” Ebron v. Commissioner of Correction, supra, 120 Conn.App. at 563–66, 992 A.2d 1200.

The habeas court determined that Silverstein's performance was deficient insofar as he failed to recommend to the petitioner that he accept the plea offer under which he would receive ten years incarceration, suspended after six years. Id. at 571, 992 A.2d 1200. “In support of this conclusion, the court noted that Silverstein should have known of the petitioner's egregious criminal record. Additionally, Silverstein should have known that [the petitioner's acceptance of an open plea would result in the generation of] a PSI report ... by the office of adult probation. The court further indicated that Silverstein should have known that this report would provide greater details of the petitioner's criminal history. [Finally], the court observed that Silverstein should have known that there were no defenses to the principal charges of attempt to commit assault of [public safety personnel] and [the] violation of a conditional discharge.” Id. at 571–72, 992 A.2d 1200.

Accordingly, the habeas court granted the petition for a writ of habeas corpus on the ground that “Silverstein had provided ineffective assistance of counsel with respect to the state's plea offer and that the petitioner was prejudiced thereby. The [habeas] court rejected the petitioner's claims with respect to the charge of attempt to commit assault of [public safety personnel] and that his plea was invalid. As a remedy, the [habeas] court directed the trial court to vacate the petitioner's plea and to afford him the opportunity to accept the state's offer of ten years incarceration, suspendedafter six years. If the petitioner were to accept this offer, he would then be resentenced in accordance with the plea bargain and ... applicable law. The habeas court subsequently granted the respondent's petition for certification to appeal from the [judgment of the habeas court].” Id. at 566, 992 A.2d 1200. The Appellate Court affirmed the habeas court's judgment; id. at 592, 992 A.2d 1200; and this certified appeal followed.

After the appeal was filed, but before oral argument before this court, we ordered the parties to submit supplemental briefs addressing the impact of the United States Supreme Court's decisions in Lafler v. Cooper, ––– U.S. ––––, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), and Missouri v. Frye, ––– U.S. ––––, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), on this case. In those cases, the United States Supreme Court held that habeas petitioners can establish a violation of the sixth amendment right to counsel by proving “a reasonable probability [that] they would have accepted the ... plea offer had they been afforded effective assistance of counsel.” Missouri v. Frye, supra, at 1409; see also Lafler v. Cooper, supra, at 1384 (“[i]n the...