Green v. Comm'r of Corr.

• Decision Date: 25 April 2017
• Docket Number: AC 38205
• Citation: 160 A.3d 1068,172 Conn.App. 585
• Court: Connecticut Court of Appeals
• Parties: Courtney GREEN v. COMMISSIONER OF CORRECTION

172 Conn.App. 585

160 A.3d 1068

Courtney GREEN

v.COMMISSIONER OF CORRECTION

AC 38205

Appellate Court of Connecticut.

Argued October 27, 2016

Officially released April 25, 2017

Norman A. Pattis, New Haven, for the appellant (petitioner).

Harry Weller, senior assistant state's attorney, with whom, on the brief, were Kevin T. Kane, state's attorney, and Randall Blowers, former special deputy assistant state's attorney, for the appellee (respondent).

Alvord, Sheldon and Harper, Js.

HARPER, J.

The petitioner, Courtney Green, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus.¹ On appeal, the petitioner claims that the habeas court improperly rejected his claims that (1) he received ineffective assistance of counsel due to his attorney's failure to advise him properly regarding the sentencing consequences of his guilty pleas, and (2) his guilty pleas were not made knowingly, intelligently, and voluntarily because the trial court failed to ensure he was not under the

influence of any medications that would inhibit his ability to enter guilty pleas. We conclude that the habeas court properly rejected the petitioner's ineffective assistance of counsel claim on the ground that he failed to demonstrate prejudice as required under the test articulated in Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as modified by Ebron v. Commissioner of Correction , 307 Conn. 342, 357, 53 A.3d 983 (2012), cert. denied sub nom. Arnone v. Ebron , ––– U.S. ––––, 133 S.Ct. 1726, 185 L.Ed.2d 802 (2013). We also conclude that the petitioner's second claim must fail as a matter of law because, although it is common practice in Connecticut and perhaps advisable to do so, the law does not require a court to determine whether a defendant's faculties are impaired by any medications prior to accepting guilty pleas. See State v. Ocasio , 253 Conn. 375, 378–79, 751 A.2d 825 (2000). Accordingly, we affirm the judgment of the habeas court.

The following facts underlie the criminal conviction from which the present habeas petition arises.² On July 19, 2008, Stamford police were dispatched to a bar on Selleck Street in Stamford known as Harry O's. Their investigation revealed that the petitioner had engaged in an altercation with Jonathan Payano, whom the petitioner had accused of attempted pickpocketing. This altercation culminated with the petitioner confronting Payano and his companions outside of the bar. In the course of this confrontation, the petitioner brandished a firearm and proceeded to shoot Payano and two of his companions, Michael Garrabito and Harvey Castro, from very close range. Payano and Garrabito each were shot in the leg, and Castro was shot in the hip and in the hand while attempting to push Garrabito out of the line of fire. A witness told police that the wounded

men quickly escaped into the bar while the petitioner discarded the firearm and fled the scene. Payano, his companions, and employees of the bar all identified the petitioner as the shooter and subsequently identified the petitioner in photographic arrays.

The petitioner was arrested on August 1, 2008, approximately two weeks after the shooting. During the subsequent criminal proceedings, the petitioner was represented by attorney Wayne Keeney. Keeney attempted to negotiate with the state's attorney, offering guilty pleas in exchange for a reduced sentence. Ultimately, those negotiations failed to produce an offer that the petitioner considered acceptable, and so, on April 21, 2009, pursuant to Keeney's advice, the petitioner pleaded guilty to three counts of assault in the first degree by means of the discharge of a firearm in violation of General Statutes § 53a–59(a)(5), with no sentence agreement from the state, hoping that Keeney could argue for a shorter sentence. He was subsequently sentenced to twenty years of incarceration.

On February 6, 2015, the petitioner filed the operative petition for a writ of habeas corpus, alleging that Keeney had rendered ineffective assistance in failing to provide adequate advice to the petitioner regarding his guilty pleas, and that the trial court's failure to inquire whether the petitioner was under the influence of any medications that might impair his judgment rendered his pleas not knowing and voluntary. On March 26, 2015, a trial was conducted on the petitioner's claims, at which the only witnesses were Keeney and the petitioner. The habeas court made the following findings that are relevant to the petitioner's claims on appeal. From the outset of his representation of the petitioner, Keeney believed that the state had a very strong case against the petitioner and that, based on his lengthy criminal exposure, it was in the petitioner's best interests to seek a plea deal. During plea negotiations, the state

offered the petitioner a sentence of twenty or twenty-five years of incarceration in exchange for pleading guilty, which the petitioner rejected on Keeney's advice. Later, when the state offered the petitioner a sentence of twenty years, suspended after fifteen years, to be followed by a likely term of either probation or conditional discharge, in exchange for pleading guilty, the petitioner rejected this offer as well on Keeney's advice. Keeney recommended that the petitioner reject each of these plea offers because he considered the proposed sentences disproportionately high, given the nonfatal injuries suffered by the victims. The state never made any other offers, contrary to the petitioner's claim that the state made an offer of fifteen years.³

After the state's second offer, Keeney decided, based on his experience in prior dealings with the prosecutors in the Hartford judicial district, that it would be advantageous to continue the plea negotiation process. He sought approval from the petitioner to make a counteroffer to the state, in which the petitioner would serve seven to eight years in exchange for pleading guilty. The petitioner rejected this proposal, stating that the eight year upper limit was "a year too much." Finally, with trial approaching, Keeney advised the petitioner that, due to the strength of the state's case, it would

be unwise to proceed to trial where he likely would be convicted and the sentence likely would be twenty-five years of imprisonment. Rather, based on previous in-chambers conversations, Keeney advised the petitioner that the judges did not appear to believe that the case warranted a long sentence and that Keeney felt confident he could argue the sentence down to ten to twelve years if the defendant entered "open pleas" of guilty. The petitioner ultimately followed this advice.

On April 21, 2009, pursuant to Keeney's advice, the petitioner entered "open pleas," which meant there was no agreement with the state regarding the sentence to be imposed, and thus he faced up to the maximum statutory sentence of three consecutive terms of twenty years imprisonment, for a total of sixty years imprisonment. Before accepting the petitioner's pleas, the court, Nigro, J. , canvassed the petitioner regarding his understanding of the implications of the pleas, but did not inquire whether the petitioner was in any way impaired by medication. The court was satisfied with the petitioner's answers and found that the pleas were entered knowingly and voluntarily with the effective assistance of counsel. Thereafter, the pleas were accepted and the petitioner was sentenced to twenty years of incarceration.

On July 13, 2015, after making the aforementioned findings of fact, the habeas court, Oliver, J. , denied the petition. The court concluded that the petitioner had failed to establish prejudice on his claim of ineffective assistance of counsel because he did not establish that there was a reasonable probability that he would have accepted the second plea offer if not for counsel's allegedly deficient performance. The court also rejected the petitioner's claims that his pleas were not knowing and voluntary because there was no credible evidence that the petitioner was under the influence of any substance that negatively impacted his ability to enter knowing

and voluntary pleas.⁴ On July 27, 2015, the habeas court granted certification to appeal the denial of the petition for a writ of habeas corpus.

I

The petitioner first argues that the habeas court incorrectly concluded that he was not denied his constitutional right to the effective assistance of counsel. He argues that Keeney deficiently advised him regarding the favorability of particular plea offers from the state and regarding his chances of obtaining a better sentence through open pleas. If not for this advice, the petitioner argues that he would have accepted a plea offer of twenty years incarceration, with execution suspended after fifteen years, and would not have been sentenced to twenty years after entering the open pleas recommended by Keeney.

"It is well settled that in reviewing the denial of a habeas petition alleging the ineffective assistance of counsel, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary." (Internal quotation marks omitted.) Gerald W. v. Commissioner of Correction , 169 Conn.App. 456, 465, 150 A.3d 729 (2016), cert. denied, 324 Conn. 908, 152 A.3d 1246 (2017).

"We begin our analysis with the legal principles that govern our review of the petitioner's claim. A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings." (Internal quotation marks omitted.) Flomo v. Commissioner of Correction , 169 Conn.App. 266, 277, 149 A.3d 185 (2016), cert. denied, 324 Conn. 906, 152 A.3d 544 (2017). "Pretrial negotiations implicating the decision of whether to...