McMillion v. Comm'r of Corr.

• Decision Date: 05 August 2014
• Docket Number: AC 35308
• Court: Appellate Court of Connecticut
• Parties: ROBERT MCMILLION v. COMMISSIONER OF CORRECTION

ROBERT MCMILLION v. COMMISSIONER OF CORRECTION

AC 35308

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued April 23, 2014

August 5, 2014

DiPentima, C. J., and Alvord and Keller, Js.

(Appeal from Superior Court, judicial district of Tolland, Solomon, J. [motion to consolidate]; Cobb, J. [judgment].)

Michael Zariphes, assigned counsel, for the appellant (petitioner).

Rocco A. Chiarenza, assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and James M. Bernardi, supervisory assistant state's attorney, for the appellee (respondent).

Opinion

KELLER, J. The petitioner, Robert McMillion, appeals from the judgment of the habeas court denying his second amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion in denying his petition for certification to appeal and argues that the habeas court improperly (1) granted the motion to dismiss brought by the respondent, the Commissioner of Correction, for the petitioner's failure to make a prima facie case pursuant to Practice Book § 15-8¹ on his claim that his trial counsel rendered ineffective assistance by failing to advise him adequately with regard to a pretrial plea offer, and (2) failed to find that his trial counsel had rendered ineffective assistance by failing to advise him adequately with regard to the pretrial plea offer. We conclude that the habeas court abused its discretion in denying certification to appeal and that the habeas court improperly granted the respondent's motion to dismiss. Accordingly, we reverse the judgment and remand the case to the habeas court for a new trial on the petitioner's claim that his trial counsel rendered ineffective assistance when advising him as to whether to accept or to reject the plea offer.

The following facts and procedural history are relevant to our resolution of the petitioner's claims. On September 16, 2007, the petitioner struck the victim, Ivan Flores, in the head multiple times with a baseball bat.² The state charged the petitioner with the crime of assault in the first degree in violation of General Statutes § 53a-59 (a) (1). On June 1, 2009, a jury found the petitioner guilty of assault in the first degree, and the trial court sentenced him to eight years of incarceration followed by five years of special parole with special conditions. This court affirmed his conviction on direct appeal. State v. McMillion, 128 Conn. App. 836, 17 A.3d 1165, cert. denied, 302 Conn. 903, 23 A.3d 1243 (2011). Thereafter, the petitioner filed the present habeas action in which he alleged that both his trial and appellate attorneys had rendered ineffective assistance.³

On May 3, 2012, the petitioner filed the operative second amended petition for a writ of habeas corpus in which he alleged that his trial counsel, Attorney Jon Imhoff, rendered ineffective assistance by failing: (1) to call certain witnesses for the defense; (2) to investigate the evidence and/or the state's witnesses adequately prior to trial; (3) to advise the petitioner properly regarding the state's pretrial plea offer; (4) to procure the petitioner's medical records and present them as mitigating evidence; and (5) to procure an expert witness to testify concerning the petitioner's medical condition in order to mitigate his culpability. The respondent filed an answer and denied the petitioner's claims.

On November 6, 2012, the habeas court held a hearing at which the petitioner testified as the only witness on his behalf. As to the third claim of ineffective assistance of trial counsel regarding Imhoff's advice concerning the plea offer, the petitioner testified that he had been represented by Imhoff at the criminal trial and met with him on four occasions prior to trial. The petitioner claimed that, prior to trial, Imhoff conveyed to him a plea offer by the state that would require that he spend five years in prison.⁴ He testified that when Imhoff conveyed the plea offer, "He told me . . . [t]he plea bargain was five years. He told me if I took it to trial, I would get five, mandatory. He never explained to me that if I was to take it to trial, that the five mandatory was the minimum, that I could get up to twenty years. He never explained that to me. He told me that it was [a] five [year] plea bargain, and if I was to go to trial, it would be five, mandatory, and I kept telling him, I said, Well, there's no mandatory sentence in the state of Connecticut for this charge.⁵ He told me . . . Listen. I know. I'm the attorney here." On the basis of Imhoff's alleged explanation, the petitioner decided to reject the plea offer, concluding that he was not taking a risk by proceeding to trial because he would spend five years in prison regardless of whether he pleaded guilty or was convicted and sentenced after a trial. He indicated that Imhoff never advised him whether to accept or reject the five year offer. The petitioner stated that Imhoff did not explain until jury selection began that, by going to trial, he faced a five year mandatory minimum sentence and that his maximum exposure on the charge of first degree assault was twenty years in prison. At that point, the petitioner claimed, he asked Imhoff to determine if the plea offer "was still on the table." Upon inquiry, Imhoff advised him that the offer no longer was available. The petitioner testified that had he known a rejection of the plea offer exposed him to a maximum penalty of twenty years in prison if he was convicted after trial, he would have accepted the state's offer.

Following the petitioner's habeas testimony, he rested without calling any further witnesses. In addition, the transcripts of his underlying criminal jury trial, including the sentencing proceeding, and the decision in his direct appeal were, by agreement of the parties prior to the start of the trial, admitted as full exhibits. Prior to calling any witnesses, the respondent orally moved to dismiss the petition at the close of the petitioner's case.⁶ The respondent argued that the petitioner failed to show any evidence of Imhoff's deficient performance. Specifically, the respondent argued that the only evidence presented was that the alleged five year plea offer had been made, and that the petitioner received an eight year sentence after rejecting the offer and was found guilty at trial. The respondent asserted that, given the posttrial result, a sentence of eight years incarceration followed by five years special parole, Imhoff hada better assessment of the worth of the case in terms of an ultimate prison sentence than did the prosecutor, and that it was entirely reasonable for the petitioner to reject a five year plea offer in exchange for proceeding to trial and being exposed to an additional three years in prison at that time.

In response, the petitioner argued that his own testimony as to what Imhoff told him, along with his understanding of counsel's advice, demonstrated ineffective representation and established a prima facie case to survive the respondent's motion to dismiss. The petitioner acknowledged that "of course, the court can believe him or not believe him . . . but right now, as it stands," the petitioner's testimony was sufficient to prevent dismissal of his claim of ineffectiveness on the basis of the adequacy of counsel's advice concerning the pretrial plea offer.

"In Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction . . . . That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense . . . . [A] successful petitioner must satisfy both prongs . . . [and the] failure to satisfy either . . . is fatal to a habeas petition." (Citation omitted; internal quotation marks omitted.) Perez v. Commissioner of Correction, 150 Conn. App. 371, 377-78, 90 A.3d 374 (2014). The habeas court, in entering a dismissal on the claim of counsel's ineffective assistance as to advice regarding the plea offer, relied on the recent United States Supreme Court decision in Missouri v. Frye, U.S. , 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012), as to the standard for establishing ineffective assistance in the context of a rejection of a pretrial plea offer. On the basis of that case, the habeas court ruled that the petitioner had failed to present a prima facie case that he was prejudiced by Imhoff's alleged deficient performance because he had not presented any evidence that the trial court would have accepted the terms of the plea offer had it been presented to that court. The habeas court then "directed [a] verdict"⁷ against the petitioner on his claim that he was improperly advised on the plea offer.⁸ The habeas court subsequently denied the petitioner certification to appeal and this appeal followed. Additional facts and procedural history will be set forth as necessary.

The petitioner claims that the habeas court abused its discretion in denying certification to appeal on the ground that the habeas court improperly dismissed his claim concerning ineffective assistance during the plea bargaining process due to its misinterpretation of the United States Supreme Court decision in Frye. The peti-tioner maintains that, based upon a proper application of Frye, he presented sufficient evidence to survive a dismissal. We agree that the court's denial of certification to appeal constituted an abuse of discretion and that the court improperly dismissed the petitioner's case.

We begin by setting forth the applicable standard of review and procedural hurdles that a petitioner must surmount to obtain appellate review of the merits of a habeas court's denial of a habeas petition following denial of certification to appeal. "In ...