Greene v. Comm'r Of Correction.

• Decision Date: 10 August 2010
• Docket Number: No. 30661.,30661.
• Citation: 123 Conn.App. 121,2 A.3d 29
• Court: Connecticut Court of Appeals
• Parties: Mashawn GREENE v. COMMISSIONER OF CORRECTION.

123 Conn.App. 121

2 A.3d 29

Mashawn GREENE

v.COMMISSIONER OF CORRECTION.

No. 30661.

Appellate Court of Connecticut.

Argued April 13, 2010.

Decided Aug. 10, 2010.

Laurie A. Sullivan, special public defender, with whom was Moira L. Buckley, Hartford, for the appellant (petitioner).

Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Linda N. Howe, former senior assistant state's attorney, for the appellee (respondent).

BISHOP, GRUENDEL and SCHALLER, Js.

GRUENDEL, J.

This habeas appeal involves the distinction between ineffective assistance of counsel claims concerning guilty verdicts and guilty pleas. The petitioner, Mashawn Greene, appeals from the judgment of the habeas court following its denial of his petition for certification to appeal from the denial of his amended petition for a writ of habeas corpus. On appeal, he claims that the court improperly found that he was not denied the effective assistance of counsel as it relates to his (1) guilty verdict and (2) guilty pleas. We dismiss in part and reverse in part the judgment of the trial court.

The following facts and procedural history, taken from the decisions of our Supreme Court and the habeas court, are relevant to our discussion. “On the evening of October 10, 2001, the [petitioner] purchased the following stolen firearms [from Felipe Garcia]: a Smith & Wesson Daniels Cobray M-11 nine millimeter submachine gun (Cobray M-11); a Braco Arms .38 caliber pistol; and a Mossberg 500A shotgun. At the same time, the [petitioner] purchased stolen ammunition for the Cobray M-11 consisting of eight full thirty-five round magazines loaded with nine millimeter Luger Subsonic bullets. A Cobray M-11 is a semiautomatic or automatic assault weapon capable of emptying a thirty-five round magazine in under two seconds.

“On October 12, 2001, the [petitioner and four men] learned that individuals from the area of New Haven known as ‘the Tre’ were planning to ‘shoot up’ the area of New Haven known as ‘West Hills' in retaliation for a shooting that had occurred the night before. The Tre area includes Elm Street and Orchard Street and the West Hills area includes the McConaughy Terrace projects. Rather than wait for the retaliation, the [petitioner and four men] decided to ‘go through the Tre first.’

“[The petitioner and four men] ... drove to the Tre. After they saw a group of people on the corner of Edgewood Avenue and Orchard Street, [they exited] the car ... walked to the corner of Orchard Street and Edgewood Avenue, opened fire on the people on the street corner, then ran back to the [car] and fled the scene. Six people were shot and one of the victims died from his wounds. The victims had no connection to the shooting that had occurred the evening before and were targeted merely because of their presence in the Tre area.” State v. Greene, 274 Conn. 134, 139-40, 874 A.2d 750 (2005), cert. denied, 548 U.S. 926, 126 S.Ct. 2981, 165 L.Ed.2d 988 (2006). Police later apprehended the petitioner and the other four men.

The petitioner subsequently was charged with murder as an accessory in violation of General Statutes §§ 53a-54a and 53a-8; conspiracy to commit murder in violation of General Statutes §§ 53a-54a and 53a-48; five counts of assault in the first degree as an accessory in violation of General Statutes §§ 53a-59(a)(5) and 53a-8; possession of an assault weapon in violation of General Statutes § 53-202c; and three counts of theft of a firearm in violation of General Statutes § 53a-212(a). On January 25, 2002, the petitioner pleaded not guilty to all charges. The petitioner was represented by attorney Paul Carty.

“After discussing the facts about both incidents with the petitioner and with the state's attorney ... it became apparent that the state intended to use the testimony of three of the other four codefendants to show that it was the petitioner who shot a Cobray M-11 ... the same type of gun he had purchased two days earlier ... into a crowd on the evening of October 12, 2001. Mr. Carty then advised his client that it would be in his best interest to plead guilty to the theft of weapons charges in order to prevent those charges from going to the jury. He explained to him that if he were tried on those charges as well, the jury might infer that [the] petitioner was indeed the shooter at the October 12 incident and convict him of murder. Further, [the prosecutor] had represented that he would not use the pleas in the later trial. [The] [p]etitioner then pleaded guilty to the theft of weapons charges.

“On July 8, 2003, after all the state's witnesses had testified, the state's attorney attempted to have admitted the transcript of [the] petitioner's guilty pleas dated June 3, 2003, which was the subject of Mr. Carty's motion in limine. When it appeared that the trial judge, Thompson, J., might overrule Mr. Carty's motion because he felt that the evidence of the guilty pleas was relevant, Mr. Carty suggested that a stipulation, rather than the transcript itself be entered. He reasoned that a ‘sanitized’ version of the evidence of the pleas going to the jury would make it less likely that the jury would conclude that any one of those particular guns purchased by the petitioner had been used by him in the shooting of October 12. The state's attorney agreed to enter a stipulation to that effect after which a written stipulation was submitted to the trial court with the input of both counsel.”

Thereafter, the petitioner was convicted of manslaughter in the first degree with a firearm as an accessory in violation of General Statutes §§ 53a-8(a) and 53a-55a, conspiracy to commit manslaughter in the first degree with a firearm in violation of §§ 53a-48 and 53a-55a, five counts of assault in the first degree as an accessory in violation of §§ 53a-8(a) and 53a-59(a)(5), conspiracy to commit assault in the first degree in violation of §§ 53a-48(a) and 53a-59(a)(5), and possession of an assault weapon in violation of § 53-202c. State v. Greene, supra, 274 Conn. at 136-37, 874 A.2d 750. The court sentenced the petitioner on those charges, and the three counts of theft of a firearm to which he had pleaded guilty, to sixty-five years incarceration. Subsequently, the petitioner appealed from that judgment. ¹ Our Supreme Court reversed the judgment of conviction of manslaughter in the first degree with a firearm as an accessory and remanded the case with direction to modify the judgment to reflect a conviction of manslaughter in the first degree as an accessory in violation of General Statutes §§ 53a-8(a) and 53a-55(a)(1). Id., at 174, 874 A.2d 750. The Supreme Court also reversed the judgment of conviction of conspiracy to commit manslaughter in the first degree with a firearm and remanded the case with direction to render judgment of acquittal on that charge. Id. The judgment was affirmed in all other respects; id.; and the petitioner was resentenced to a total effective term of sixty years imprisonment.

The petitioner thereafter brought a petition for a writ of habeas corpus in which he alleged that he was denied the effective assistance of trial counsel in violation of the sixth and fourteenth amendments to the United States constitution and article first, § eight, of the Connecticut constitution. The habeas court denied the petitioner's claim. The petitioner next filed a petition for certification to appeal from the judgment of the habeas court, which the habeas court also denied. This appeal followed.

We first set forth the applicable standard of review and legal principles that govern our analysis. “When confronted with a denial of certification to appeal, we must determine whether this ruling constituted an abuse of discretion.... A petitioner satisfies that substantial burden by demonstrating that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.... If the petitioner can show that the habeas court abused its discretion in denying the petition for certification to appeal, then the petitioner must demonstrate that the judgment of the habeas court should be reversed on its merits.... To determine whether the court abused its discretion, we must consider the merits of the petitioner's underlying claims.” (Citations omitted; internal quotation marks omitted.) Reeves v. Commissioner of Correction, 119 Conn.App. 852, 858, 989 A.2d 654, cert. denied, 296 Conn. 906, 992 A.2d 1135 (2010).

“A habeas petitioner can prevail on a constitutional claim of ineffective assistance of counsel [only if he can] establish both (1) deficient performance, and (2) actual prejudice.... For ineffectiveness claims resulting from guilty verdicts, we apply the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).... For ineffectiveness claims resulting from guilty pleas, we apply the standard set forth in Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), which modified Strickland's prejudice prong....

“To satisfy the performance prong, the petitioner must show that counsel's representation fell below an objective standard of reasonableness.... A petitioner who accepts counsel's advice to plead guilty has the burden of demonstrating on habeas appeal that the advice was not within the range of competence demanded of attorneys in criminal cases.... The range of competence demanded is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.... Reasonably competent attorneys may advise their clients to plead guilty even if defenses may exist. ... A reviewing court must view counsel's conduct with a strong presumption that it falls within the wide range of reasonable professional assistance.” (Citation omitted; internal...