Sherbo v. Manson

• Decision Date: 03 April 1990
• Docket Number: No. 7611,7611
• Citation: 21 Conn.App. 172,572 A.2d 378
• Court: Connecticut Court of Appeals
• Parties: Richard SHERBO v. John R. MANSON, Commissioner of Correction.

Page 378

572 A.2d 378

21 Conn.App. 172

Richard SHERBO v. John R. MANSON, Commissioner of Correction.

No. 7611.

Appellate Court of Connecticut.

Argued Nov. 3, 1989.

Decided April 3, 1990.

Kent Drager, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant (petitioner).

Rita M. Shair, Deputy Asst. State's Atty., with whom were Donald A. Browne, State's Atty., and, on the brief, Richard F. Jacobson, Asst. State's Atty., and Marcia Kahn, Law Student Intern, for appellee (respondent).

Before DALY, FOTI and LAVERY, JJ.

LAVERY, Judge.

The petitioner appeals from the judgment denying his petition for a writ of habeas corpus. He claims that the habeas court erred in failing to conclude that his pleas were not knowing, intelligent, and voluntary (1) because of a misunderstanding by the trial court, the prosecutor and his defense counsel concerning the procedure whereby convicted sex offenders are committed to Whiting Forensic Institute (Whiting), and (2) because he was under the influence of medication at the time of the pleas. We find no error.

The following facts are relevant. On March 31, 1981, the petitioner was arrested and charged with various sex offenses, kidnapping in the first degree and robbery in the first degree. His maximum exposure for the eight felonies was 120 years to life.

On April 13, 1982, the petitioner pleaded guilty, pursuant to a plea agreement, to five counts of first degree sexual assault, two counts of first degree kidnapping, and one count of first degree robbery. Before accepting the petitioner's guilty pleas, the trial court questioned him closely, as required by Practice Book § 711. During the plea canvass, the court made a commitment to recommend to the commissioner of correction that the petitioner be housed, "for whatever period of time he thought was reasonable, at the Whiting Forensic Institute."

The trial court later sentenced the petitioner to thirty years incarceration. At the petitioner's sentencing hearing, the court made its promised recommendation to the commissioner of correction, but denied the petitioner's motion for an examination by the Whiting staff to determine his eligibility for treatment at Whiting.

Since his sentencing, the petitioner has been confined in the state prison at Somers. He has not spent any time at Whiting Forensic Institute.

I

Before addressing the merits of the petitioner's claims, we must consider the respondent's contention that this court should dismiss the present petition under either the "successive petitions" or "abuse of writ" doctrines. The following procedural background is in order.

In January, 1983, the petitioner filed four pro se habeas petitions. The first petition ¹ alleged ineffective assistance of counsel; the second, ² breach of plea agreement; the third, ³ failure to inform of maximum sentence. The fourth ⁴ alleged that the pleas were invalid due to the petitioner's mental condition. On January 24, 1984, the habeas court denied the first two petitions, and the court denied the petitioner's request for certification to appeal. The third petition was withdrawn, and the fourth is the petition presently before this court.

Because the four petitions were filed contemporaneously, the fourth cannot be considered, in the simplest sense, "successive" to the others. Our review of the case file, however, reveals that the fourth was amended on February 7, 1986, two years after the first and second petitions were decided. The grounds for relief stated in the amended petition are broader and better articulated than in the original petition. We must determine, therefore, whether the fourth petition, as amended, constitutes a successive petition or an abuse of writ so as to require the dismissal of the appeal.

"Decisions concerning abuse of the writ are addressed to the sound discretion of the trial court. 'Theirs is the major responsibility for the just and sound administration of ... collateral remedies, and theirs must be the judgment as to whether a second or successive application shall be denied without consideration of the merits.' Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068 [1079], 10 L.Ed.2d 148 (1963)." Iasiello v. Manson, 12 Conn.App. 268, 271, 530 A.2d 1075, cert. denied, 205 Conn. 811, 532 A.2d 586 (1987). We note that the habeas court decided to present petition on the merits, and in its memorandum of decision referred to its prior decision on the other two petitions. Thus, the habeas court implicitly rejected the state's successive petition theory. After reviewing the record, we conclude that the habeas court did not abuse its discretion in deciding the petition on the merits. Moreover, our conclusion is reinforced by the consideration that, to this point, none of the petitioner's claims has received appellate review. We therefore turn to the merits of the petition.

II

Four grounds for relief are presented in the petition, all of which are variations on a theme, namely, that the petitioner's pleas were not knowing, intelligent or voluntary. Three of the grounds are derived from the same set of facts, which we now relate.

At the petitioner's plea canvass, the following colloquoy took place:

"Mr. Lyons [state's attorney]: May I add one other thing? May it be indicated that this is an agreed sentence?

"The Court: Okay. Thank you. Is that true, Mr. Lickson?

"Mr. Lickson [defense counsel]: I was going to interject that Your Honor has indicated in our discussions that the court would recommend, at the time of sentencing, that the sentence be carried out at the Whiting Forensic Center in Middletown.

"The Court: You understand that the commissioner of correction, by statute, is in charge of housing of persons who are incarcerated.

"Mr. Sherbo: Yes.

"The Court: The court can, however, recommend to the commissioner, and the commissioner will do as he sees fit. But I have told your attorney, and the record should indicate that your attorney, Mr. Lyons ... and myself, have had extensive discussions about these cases, and during those discussions, I have indicated to them that if I were, in fact, to accept the recommendation of the state, as joined in by your attorney, I would recommend and suggest to the commissioner that he house you, for whatever period of time he thought was reasonable, at the Whiting Forensic Institute. Is that correct?

"Mr. Sherbo: Yes.

"The Court: Do you have any questions for me so far?

"Mr. Sherbo: No."

At his sentencing, the petitioner, pursuant to General Statutes § 17-244, ⁵ moved the court to order the Whiting staff to examine the petitioner in order to determine whether he would be a suitable candidate for treatment there. The court, in an exercise of its discretion and after determining that the petitioner was not mentally ill or dangerous to himself or others; see General Statutes § 17-244; denied the motion. The petitioner excepted. The court then sentenced the petitioner to thirty years to life. The following colloquy then occurred:

"Mr. Lickson [defense counsel]: Were you going to make a recommendation?

"The Court: Yes. I think these offenses were, obviously, committed by an individual who needs intensive rehabilitation prior to his being released from those offenses and I would urge the commissioner of correction make a serious effort to house this individual in an area or location where he can be given intensive rehabilitation as it, obviously, will be needed prior to any release."

The three grounds discussed in this section are closely related. They are (1) that the petitioner was not aware of the actual value of the commitments made to him by the prosecutor and the trial court, (2) that he was misled by misrepresentations concerning the Whiting Institute commitment procedure, and (3) that he did not properly understand the applicable law because it was stated to him incorrectly.

A guilty plea, which is itself tantamount to conviction, may be accepted by the court only when it is made knowingly, intelligently, and voluntarily. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). A guilty plea otherwise obtained is in violation of due process and voidable. State v. Childree, 189 Conn. 114, 119, 454 A.2d 1274 (1983); State v. Hackett, 16 Conn.App. 601, 602, 548 A.2d 16 (1988). To make a valid guilty plea, a defendant must have a full understanding of what his plea means; Boykin v. Alabama, supra; and be fully aware of the direct consequences, including the actual value of any commitments made to him by the court, the prosecutor, or his own counsel. Brady v. United States, 397 U.S. 742, 748 n. 6, 90 S.Ct. 1463, 1469 n. 6, 25 L.Ed.2d 747 (1970).

The petitioner claims that, unbeknownst to him, the trial court's commitment to recommend to the commissioner of correction that he should serve his sentence at Whiting was virtually worthless. As the defendant notes, under the proper procedure by which a trial court may commit a convicted person to Whiting, as provided by General Statutes § 17-244, the trial court makes no recommendation to the commissioner concerning Whiting because the commissioner of correction is not involved in the decision. The defendant's reliance on that worthless promise in pleading guilty, he argues, rendered those pleas unknowing and involuntary. Brady v. United States, supra.

A defendant must be aware of the actual value of any commitments made to him by the court, prosecutor or his own counsel; id., 78; because a realistic assessment of such promises is essential in making an intelligent decision to plead guilty. This is not to say, however, that promises made by the court or the prosecutor must in every instance accurately reflect the applicable law. If any legal flaw in a promise does not mask the actual value of the promise, the legal flaw is harmless. For instance, a promise that is legally inaccurate, and thus unenforceable, will not present a ground for habeas...