Safford v. Warden

Decision Date28 July 1992
Docket NumberNo. 14452,14452
Citation612 A.2d 1161,223 Conn. 180
CourtConnecticut Supreme Court
PartiesJohnnie SAFFORD v. WARDEN, State Prison.

Berdon, J., concurred in result and filed opinion.

Karen A. Goodrow, Asst. Public Defender, for appellant (petitioner).

Jack W. Fischer, Deputy Asst. State's Atty., with whom, on the brief, were Donald B. Caldwell, State's Atty., and Christopher Morano, Asst. State's Atty., for appellee (respondent).

Before PETERS, C.J., and CALLAHAN, GLASS, BORDEN and BERDON, JJ.

BORDEN, Associate Justice.

The petitioner appeals 1 from the judgment of the habeas corpus court, Scheinblum, J., denying his petition for a writ of habeas corpus, wherein he challenged his conviction of sexual assault in the first degree, in violation of General Statutes § 53a-70. 2 That conviction had been based upon the petitioner's guilty plea before the trial court, Schaller, J., and the sentence imposed thereon by the trial court, Arena, J. The petitioner claims that the habeas court improperly denied his petition because: (1) Judge Arena was barred by the Code of Judicial Conduct from sentencing the petitioner; 3 and (2) the conduct of the petitioner's trial counsel was ineffective as a matter of law. We affirm the judgment of the habeas court.

The record discloses the following facts. According to the factual statement made by the state at the time of the petitioner's guilty plea, the petitioner picked up the female victim, who had been hitchhiking in Hartford, in November, 1987. He took her to his apartment, where he forced her to engage in sexual intercourse by holding the jagged edge of a broken ashtray to her throat.

As a result of this incident, the petitioner was charged with the crimes of sexual assault in the first degree in violation of General Statutes § 53a-70; see footnote 2, supra; and unlawful restraint in violation of General Statutes § 53a-95. The petitioner pleaded not guilty and elected a jury trial. He was represented by attorney Gerald Klein, who also represented him on three prior pending charges, including another sexual assault charge in which the petitioner's brother was a codefendant. 4 On several occasions, Klein and the state's attorney discussed the petitioner's cases with Judge Arena, who was, at that time, the presiding judge of the criminal division of the Hartford judicial district. 5

Although the case had been assigned to Judge James Higgins for trial, jury selection was conducted before Judge Schaller. The habeas court found that, during the third day of jury selection, Judge Arena was instrumental in procuring a plea bargain whereby he indicated that, in exchange for the petitioner's plea of guilty to the charge of sexual assault in the first degree, he would impose a sentence of ten years imprisonment, execution suspended after five years, followed by four years probation. Judge Arena also indicated that the defendant could argue for a lesser sentence, and that he might be favorably disposed to a lesser sentence depending on the attitude of the victim.

Accordingly, on January 5, 1989, the defendant pleaded guilty to sexual assault in the first degree before Judge Schaller. The habeas court specifically found that, in the plea canvass, Judge Schaller fully informed the petitioner that Judge Arena had "put together the deal and that [Judge] Arena would be the sentencing judge." 6 At the subsequent sentencing proceeding before Judge Arena, on February 16, 1989, the petitioner sought to withdraw his guilty plea, claiming that he had been confused when he pleaded guilty. The court, Arena, J., denied his motion to withdraw his plea, and imposed a sentence of ten years imprisonment, execution suspended after five years, followed by four years probation.

The petitioner appealed from that judgment of conviction to the Appellate Court, claiming that the court, Arena, J., had improperly (1) failed to conduct an evidentiary hearing on his motion to withdraw his plea, and (2) sentenced the petitioner after actively participating in pretrial plea negotiations, thereby violating his federal and state constitutional rights to due process. State v. Safford, 22 Conn.App. 531, 532, 578 A.2d 152, cert. denied, 216 Conn. 823, 581 A.2d 1057 (1990). The Appellate Court rejected the petitioner's claims. With respect to the second claim, which is the only claim of the petitioner's direct appeal relevant here, the Appellate Court first noted that since the petitioner had failed to preserve that claim by moving for Judge Arena's disqualification pursuant to Practice Book § 997, 7 the claim could only be reviewed if it rose to the level of constitutional proportions. Id. at 537, 578 A.2d 152. The court then stated that the prohibition against a judge participating in plea negotiations is not a constitutional matter, provided that the plea was not judicially coerced and thus voluntary. The court then concluded that since there was no evidence that Judge Arena's participation in the plea bargain resulted in a judicially coerced or otherwise involuntary plea, the petitioner's claim was not of constitutional proportions. Id., at 537-38, 578 A.2d 152. Accordingly, the court concluded that, under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), the petitioner could not prevail on that claim. The Appellate Court also discerned from the record "the possibility that the defendant's failure to make his objections known at the sentencing was not mere inadvertence but a trial tactic." State v. Safford, supra, 22 Conn.App. at 538, 578 A.2d 152.

Meanwhile, the petitioner had brought this habeas corpus action. In this action, the petitioner pleaded four theories: (1) his plea had been involuntary because it was based upon misinformation supplied to him by his trial counsel; (2) his plea had been involuntary because it was based upon inadequate information supplied to him by his trial counsel; (3) his sentence was illegal because it had been improperly based upon extrarecord information within the knowledge of the sentencing judge; and (4) his trial counsel had been ineffective in giving him misinformation, in giving him inadequate information, and in failing to move for Judge Arena's disqualification.

In its memorandum of decision, however, the habeas court considered the petitioner's claims somewhat differently. The habeas court considered the petitioner to have raised three claims: (1) his plea of guilty had not been voluntary and knowing because Klein had misinformed him about the sentence and had failed to apprise him of exculpatory evidence that had been unearthed during Klein's investigation on the petitioner's behalf; (2) his trial counsel had been ineffective because he had failed to inform the petitioner about the purported exculpatory evidence and had failed to inform him fully about the sentence agreed upon with Judge Arena; and (3) his trial counsel had been ineffective because he had not requested Judge Arena's disqualification. 8 Since the petitioner has not at any time during this appeal challenged this reformulation by the habeas court of his claims therein, we view his appeal accordingly.

The habeas court rejected the petitioner's claims. With respect to the first two claims, the habeas court concluded that the petitioner's testimony was not credible, and that he had failed to meet his burden of proof of the underlying facts. 9

With respect to the third claim, namely, that Klein had been ineffective by not requesting Judge Arena's disqualification, the court concluded that there had been no basis for moving to disqualify Judge Arena, based upon Judge Arena's knowledge of the petitioner's other charges, which had been nolled, and Judge Arena's knowledge of the disposition of the petitioner's brother's case. 10 The court concluded that since, under State v. Huey, 199 Conn. 121, 505 A.2d 1242 (1986), a trial court in imposing sentence may consider information regarding counts that have not been prosecuted, Judge Arena was acting within his discretion in considering the charges that had been nolled. The court also found that Judge Arena had been instrumental in creating the plea bargain, and that the petitioner had been fully aware that Judge Arena would be the sentencing judge. The habeas court also noted that the petitioner's own expert witness had indicated that he might not have moved to disqualify Judge Arena. Finally, the court concluded that any prohibition against a judge's participation in plea bargaining is not a matter of constitutional dimension. Accordingly, the habeas court dismissed the petition. This appeal followed.

I

The petitioner's principal claim on appeal is that Judge Arena was barred by Canon 3(C)(1) of the Code of Judicial Conduct 11 from sentencing the petitioner. The petitioner argues that, irrespective of the propriety of the information that Judge Arena had at the time of sentencing, it was improper as a matter of law for Judge Arena to sentence the petitioner because Judge Arena had actively participated in the plea bargaining that led to the petitioner's plea.

It is important to note what the petitioner does not argue with respect to this claim. The petitioner does not argue that his sentence was illegal because it had been based on improper information within the knowledge of the sentencing judge. Nor does he argue that his trial counsel had been ineffective in failing to move for Judge Arena's disqualification. The petitioner's claim is, rather, that his conviction should be set aside because Judge Arena's active participation in the plea negotiations was a per se violation of Canon 3(C)(1). We decline to review this claim.

First, this claim bears little, if any, resemblance to the petitioner's claim involving Judge Arena's conduct as the petitioner presented this case to the habeas court and as that court decided the case. In the habeas court, the petitioner's claim regarding Judge Arena's...

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