Falby v. Commissioner of Correction

• Decision Date: 05 October 1993
• Docket Number: No. 11647,11647
• Citation: 32 Conn.App. 438,629 A.2d 1154
• Parties: Edward FALBY v. COMMISSIONER OF CORRECTION.
• Court: Connecticut Court of Appeals

Page 1154

629 A.2d 1154

32 Conn.App. 438

Edward FALBY v. COMMISSIONER OF CORRECTION.

No. 11647.

Appellate Court of Connecticut.

Argued March 29, 1993.

Decided Aug. 10, 1993.

Certification Denied October 5, 1993.

Karen A. Goodrow, for appellant (petitioner).

Richard F. Jacobson, Asst. State's Atty., for appellee (respondent).

Before FOTI, LAVERY and LANDAU, JJ.

LAVERY, Judge.

The petitioner appeals from the denial of his petition for a writ of habeas corpus. He claims that the trial court improperly determined (1) that erroneous advice given by his attorney did not deprive him of effective assistance of counsel, and (2) that his attorney's erroneous advice did not render his guilty plea involuntary and therefore invalid. We affirm the judgment of the trial court.

The relevant facts are undisputed. On June 13, 1978, a nine year old girl was strangled and left to die in a stream near her home in Westport. Three days later, the petitioner was arrested and confessed to the crime. After a jury trial, the petitioner was convicted of murder under General Statutes § 53a-54a(a), ¹ and sentenced to serve a term of twenty-five years to life. That judgment was set aside, however, when our Supreme Court ruled that the trial court had improperly failed to charge on lesser included offenses. State v. Falby, 187 Conn. 6, 30, 444 A.2d 213 (1982).

At his second trial, the state presented largely the same case. On October 11, 1983, before offering any defense evidence, the petitioner pleaded guilty to murder under the Alford ² doctrine in violation of General Statutes § 53a-54a(a). In return for his plea, the petitioner received a sentence of fifteen years to life in prison.

The petitioner appeared before the state board of parole on June 10, 1986. After taking statements from the petitioner and the victim's family, the board denied parole. Two years later, the petitioner applied for a writ of habeas corpus, challenging the validity of his five year old guilty plea.

I

The petitioner claims that his guilty plea is invalid because he lacked effective assistance of counsel. The right to effective assistance of counsel is guaranteed by the sixth and fourteenth amendments to the United States constitution. ³ Levine v. Manson, 195 Conn. 636, 639, 490 A.2d 82 (1985). A petitioner claiming ineffective assistance of counsel must prove (1) that his attorney made errors so serious as to cease functioning as counsel, and (2) that " 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " Phillips v. Warden, 220 Conn. 112, 132, 595 A.2d 1356 (1991), quoting Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984). "The ultimate focus of inquiry must be on the fundamental fairness of the proceeding being challenged." Phillips v. Warden, supra, 220 Conn. at 134, 595 A.2d 1356.

"We first consider our scope of review. Although the underlying historical facts found by the habeas court may not be disturbed unless they were clearly erroneous, whether those facts constituted a violation of the petitioner's rights under the sixth amendment 'is a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case.' Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708 [1715], 64 L.Ed.2d 333 (1980). As such, that question requires plenary review by this court unfettered by the 'clearly erroneous standard.' Id." Phillips v. Warden, supra, at 131, 595 A.2d 1356.

A

The petitioner's claim of attorney error arises from the advice he received before he pleaded guilty. On October 1, 1983, only ten days before his plea, General Statutes § 54-126a took effect, permitting victims or their families to appear and testify at parole board hearings. ⁴ The habeas court found that the petitioner and his attorney discussed this statute during their consideration of the guilty plea. The habeas court further found that his attorney told the petitioner that the new law would not affect him. This statement was incorrect. The petitioner claims that this erroneous advice deprived him of effective assistance of counsel.

"[W]hen the defendant waives his state court remedies and admits his guilt, he does so under the law then existing; further, he assumes the risk of ordinary error in either his or his attorney's assessment of the law and facts." McMann v. Richardson, 397 U.S. 759, 774, 90 S.Ct. 1441, 1450, 25 L.Ed.2d 763 (1970). An attorney's inaccurate statement of law to a defendant is not, per se, conduct outside the range of reasonable representation. See Myers v. Manson, 192 Conn. 383, 396, 472 A.2d 759 (1984) (denying petitioner's claim of ineffective assistance of counsel based on an inaccurate statement of law). Errors alone do not give rise to a claim of ineffective assistance; only errors so serious that counsel ceased functioning as counsel guaranteed by the sixth amendment. See Phillips v. Warden, supra, 220 Conn. at 132, 595 A.2d 1356.

In this case, the petitioner claims prejudice from the attorney's incorrect interpretation of the applicability to the petitioner of the new law governing live victim testimony at parole hearings. It is significant, however, that prior to enactment of § 54-126a the parole board considered written victim testimony. The new law changed only the form of victim testimony in that the victim is now permitted to appear and give a statement. Therefore, the petitioner's only claim is that he was prejudiced by the physical presence of the victim's family, not by the fact that they gave testimony.

The McMann standard for attorney competence, as applied in a guilty plea context, includes ordinary error. See Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985) ("[i]n the context of guilty pleas, the first half of the Strickland v. Washington test is nothing more than a restatement of the standard of attorney competence already set forth in ... McMann v. Richardson [supra]"). The error made by the attorney related to a procedural matter in a parole hearing, to be held at some indeterminate date, years in the future. The misstatement was, at best, ordinary error. Thus, the petitioner has failed to prove the first prong of the test for ineffective assistance of counsel.

B

Even if the petitioner had succeeded in proving his attorney's conduct deficient, his claim of ineffective assistance fails. The second prong of the Strickland test for ineffective assistance of counsel requires that the petitioner prove prejudice. Phillips v. Warden, supra. In a guilty plea context, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, supra, at 59, 106 S.Ct. at 370. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, supra, 466 U.S. at 694, 104 S.Ct. at 2068. A different result must be sufficiently probable to undermine confidence in the actual outcome. Bunkley v. Commissioner of Correction, 222 Conn. 444, 456 n. 14, 610 A.2d 598 (1992). It must be reasonably probable that the petitioner remains burdened by an unreliable conviction. Id., at 463, 610 A.2d 598.

The petitioner claims that he would not have pleaded guilty had he known that the victim's family would be permitted to testify at his future parole hearing. The record, however, reveals facts that counter that assertion. First, the petitioner faced at his second trial substantially the same case that had resulted in a prison sentence of twenty-five years to life. Second, our Supreme Court had ruled his graphic and exhaustive confession constitutionally valid and admissible. State v. Falby, supra, 187 Conn. at 16, 18-19, 444 A.2d 213. Third, his psychiatric defense had failed at the first trial and his intention to use an alibi defense at his second trial would have directly conflicted with his confession. Fourth, the state was permitted at his second trial to enter evidence of his prior similar assault of a fourteen year old girl. Id. Fifth, the petitioner's primary concern was eligibility for parole; pleading guilty cut ten years off his possible sentence advancing his eligibility by five years.

In addition to these factors, his Alford plea permitted the petitioner to avoid revealing his guilt to his parents. The petitioner admitted at his habeas trial that his parents' health had suffered as a result of his criminal problems and he feared that he would "lose" them if they learned the truth. The petitioner stated that he knew that continuing his second trial would require him to testify and "openly talk about the case." By pleading guilty he avoided that.

Likewise, in his 1978 confession to the murder, the petitioner said that he feared that his parents would be ruined and that he could not face them. Similarly, at his sentencing hearing five years later, the petitioner's concern for his family was "the most strongly motivating factor" in pleading guilty. Finally, the petitioner told the parole board in 1986 that he still feared revealing his guilt to his parents. Thus, the petitioner had a long-standing desire to shield his parents from the truth. He admits that this desire was a factor in choosing to plead guilty because it meant that he could avoid testifying and "hurting" his parents. In light of the case against him and his concern for his parents, we cannot say that it is probable that he would have continued with the trial had he known of the actual parole board procedure. We certainly do not find a probability sufficient to undermine confidence in the actual outcome: guilt of murder. ⁵ Bunkley v. Commissioner of Correction, supra.

II

The petitioner next claims that his attorney's erroneous advice made his plea involuntary, undermining its validity. Guilty...