Lebron v. Warden

• Decision Date: 28 August 2019
• Docket Number: CV144005768S
• Court: Connecticut Superior Court
• Parties: Luis LEBRON #185091 v. WARDEN

Luis LEBRON #185091 v. WARDEN

No. CV144005768S

Superior Court of Connecticut, Judicial District of Tolland, Rockville

August 28, 2019

UNPUBLISHED OPINION

OPINION

Bhatt J.

The petitioner, Luis Lebron, alleges that trial counsel Thomas Conroy failed to advise him that by pleading guilty he was giving up the right to appeal: 1) the trial court’s granting of his prior counsel Kenneth Simon’s motion to withdraw, and 2) the trial court’s denial of his request to represent himself. If not for this lack of advice, he would not have pled guilty and instead would have proceeded to trial because he would have had appellate claims that would almost certainly have resulted in a reversal of his convictions, a new trial and a second opportunity to convince the jury that he killed the victim in self-defense. The petition is denied because the court is not persuaded, even assuming Attorney Conroy’s deficient performance, that the petitioner would have rejected the offer and proceeded to trial.

I. PROCEDURAL HISTORY AND FACTUAL BACKGROUND

The present matter is before the habeas court on remand after our Appellate Court reversed in part the judgment of the prior habeas court. The scope of the remanded proceedings is narrow. There is to be a trial on: "... those portions of count five alleging that the petitioner’s first habeas counsel failed to plead, prove, and argue those claims raised in count four of the amended petition regarding [Attorney] Conroy’s alleged failure to advise the petitioner of the consequences of his guilty plea[; ] ... that portion of count six, which claims that the petitioner’s second habeas counsel failed to adequately plead, prove, and argue the surviving portions of count five." Lebron v. Commissioner of Correction, 178 Conn.App. 299, 175 A.3d 46 (2017) (remanding the matter "for further proceedings on those portions of the petition only"), cert. denied, 328 Conn. 913, 179 A.3d 779 (2018).

The parties appeared before the court on January 16, 2019, for a habeas trial on these remanded claims. The petitioner testified and presented testimony from five additional witnesses: Brandi Yanavich; Bonnie Larosa; Attorney Kenneth Simon; Attorney Thomas Conroy; and Attorney Sebastian DeSantis. The petitioner also submitted various documents into evidence. Both parties submitted post-trial briefs. The relevant procedural history was summarized by our Appellate Court in the decision that resulted in the remand.

The petitioner initially was arrested in May 1997, and charged with one count of murder in violation of General Statutes § 53a-54a(a) and criminal use of a firearm in violation of General Statutes § 53a-216 ... The petitioner was appointed a public defender, Attorney Kenneth Simon. Simon represented the petitioner through the start of jury selection, which began in January 1999. At about that time, Simon filed a motion for permission to withdraw his appearance on the ground that he could be called as a witness at trial for the petitioner).^[1] The court granted the motion.

At that time, the court discussed with the petitioner how the matter should proceed in light of defense counsel’s withdrawal on the eve of trial. The petitioner indicated to the court that he had not asked counsel to withdraw and had waived any conflict, and that he wanted to proceed with the trial. He also informed the court that he was prepared to represent himself. The trial court did not agree to allow the petitioner to proceed to trial as a self-represented party at that time. Instead, the court declared a mistrial and continued the matter so that new counsel could be appointed for the petitioner. At that hearing, the prosecutor also indicated to the court that the petitioner would soon be arrested on additional charges.

Shortly thereafter, the petitioner was arrested under a separate docket on charges of two counts of conspiracy to commit murder in violation of General Statutes § § 53a-48 and 53a-54a, and two counts of conspiracy to commit witness tampering in violation of General Statutes § § 53a-48 and 53a-151. The court ordered that the cases be heard together, and the two cases were continued to February 26, 1999.

At the February 26, 1999 hearing, the petitioner was appointed a new criminal defense attorney, Thomas M. Conroy, to handle both of his files. Conroy was granted a further continuance.

In May 1999, the petitioner, pursuant to a plea agreement that resolved all of the 1997 and 1999 charges, pleaded guilty under the Alford doctrine^[2] to one count of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55, and one count of conspiracy to tamper with a witness in violation of General Statutes § § 53a-151 and 53a-48. The court canvassed the petitioner and found that there was a factual basis for the plea and that it was knowingly and voluntarily made. The trial court later sentenced the petitioner, consistent with the plea agreement, to a term of thirty years of incarceration on the manslaughter charge and to an unconditional discharge on the conspiracy charge. The state entered a nolle prosequi as to all of the other charges against the petitioner.

(Footnotes omitted and renumbered.) Lebron v. Commissioner of Correction, supra, 178 Conn.App. 303-04.

The petitioner thereafter challenged his convictions in his first habeas corpus petition in which he raised three claims of ineffective assistance by Attorney Simon and Attorney Conroy. Id., 304-05. After the claims in the first habeas were denied after a trial, Attorney Sebastian DeSantis, who represented the petitioner in that matter, failed to timely file a petition for certification to appeal. The petitioner himself filed a petition for certification to appeal, which was denied, and did not file an appeal. Subsequently, after various unsuccessful postjudgment attempts to advance either the first habeas or an appeal therefrom, the petitioner filed a second habeas corpus petition asserting ineffective assistance by Attorney Simon, Attorney Conroy, and Attorney DeSantis. Counsel for the petitioner in his second habeas, Attorney Paul Kraus, was able to resolve the second habeas by way of a stipulated judgment that restored the petitioner’s right to appeal from the first habeas. After a renewed petition for certification to appeal was granted, the petitioner appealed from the judgment of the first habeas court. Instead of challenging the first habeas court’s rulings on the claims raised in the amended petition, the appeal challenged the first habeas court’s actions on the postjudgment motions. The Appellate Court affirmed the judgment of the first habeas court. Lebron v. Commissioner of Correction, 108 Conn.App. 245, 947 A.2d 349, cert. denied, 289 Conn. 921, 958 A.2d 151 (2008).

In the present matter, the claims remanded by our Appellate Court, after it concluded that there was good cause for trial, assert ineffective assistance by Attorney DeSantis and Attorney Kraus centering on a claim that Attorney Conroy rendered ineffective assistance for failing to ensure that the petitioner’s plea was knowing and voluntary. Lebron v. Commissioner of Correction, supra, 178 Conn.App. 323-24. As framed by the evidence presented to this court and briefed by the parties, the petitioner’s claim of deficient performance by Attorney Conroy is that he failed to consult with the petitioner about potential appellate issues when advising him about the plea offer. The petitioner was not advised by Attorney Conroy that his guilty plea would serve as a waiver of the constitutional violations that the petitioner avers occurred when he was deprived of his right to counsel of choice and his right to self-representation at the criminal trial.

II. FINDINGS OF FACT

Attorney Simon represented the petitioner during the criminal proceedings approximately twenty years ago. The petitioner was initially charged only with murder and criminal use of a firearm. Jury selection was underway when it became apparent that the petitioner would be charged with additional offenses, including conspiracy to commit murder and tampering with a witness. According to Attorney Simon’s testimony in the present habeas, a "very difficult piece of evidence popped up in the middle of jury selection" which resulted in him seeking permission to withdraw from representation pursuant to the Rules of Professional Responsibility (Rule 3.7- Lawyer as Witness). Attorney Simon anticipated the state offering this evidence at trial to show the petitioner’s consciousness of guilt.

At the January 27, 1999 hearing regarding the motion to withdraw from representation, Attorney Simon indicated the following to the court:

... [I]t is clear to me from discussion with my client that I would be placed in the position of being ... a witness. I think what we did not know yesterday morning to discuss some of the issues, the charged misconduct here, was that [the] state doesn’t intend to use uncharged misconduct in this criteria. A charge of misconduct if the defendant should be arrested during the pendency of trial allowed me to look at a witness’ statement which supports that uncharged misconduct. It is clear again, as I say, based upon what Mr. Lebron indicates to what his defense would be to those claims, that I would be a necessary witness. Of course that would be my tactical decision and so I ask permission to withdraw. I know that Mr. Lebron has concerns. I don’t think his concerns go to the motion to withdraw but I think his concern is continuance of the case, so to speak.

Petitioner’s Exhibit 3, pp. 2-3.

Attorney Simon apprised the court that the petitioner had, the morning prior to the hearing, "... indicated to [him] he desired to proceed pro se and to represent himself until such time a special [public defender]...