Yerinides v. Commissioner of Correction ( 2015 )

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CARRIE YERINIDES v. COMMISSIONER
OF CORRECTION
(AC 35733)
DiPentima, C. J., and Alvord and Bear, Js.
Argued October 29, 2014—officially released March 17, 2015
(Appeal from Superior Court, judicial district of
Tolland, Newson, J.)
William A. Snider, assigned counsel, for the appel-
lant (petitioner).
Jonathan M. Sousa, special deputy assistant state’s
attorney, with whom, on the brief, were David I. Cohen,
state’s attorney, and Yamini Menon, special deputy
assistant state’s attorney, for the appellee (respondent).
Opinion
BEAR, J. The petitioner, Carrie Yerinides, appeals
from the denial of her petition for certification to appeal
from the judgment of the habeas court denying her
amended petition for a writ of habeas corpus. On
appeal, the petitioner claims that the habeas court
abused its discretion in denying her petition for certifi-
cation and improperly determined that her criminal
defense counsel had provided effective assistance. We
conclude that the habeas court did not abuse its discre-
tion in denying certification to appeal. Accordingly, we
dismiss the appeal.
The following facts and procedural history are rele-
vant to our resolution of the petitioner’s appeal. In 2009,
the petitioner was the defendant in numerous matters
pending in the judicial districts of Bridgeport and Nor-
walk. She had a total of seven cases pending against
her, four criminal and two motor vehicle cases in Nor-
walk, and a criminal violation of probation case in
Bridgeport. While those cases were pending, on Septem-
ber 30, 2009, the petitioner was arrested, charged with
the sale of narcotics by a person who is not drug-depen-
dent in violation of General Statutes § 21a-278 (b) and
possession of narcotics in violation of General Statutes
§ 21a-279 (a), and presented before the Norwalk Supe-
rior Court under docket number S20N-CR-09-0124007
(docket #007). Prior to the petitioner’s arrest on docket
#007, the state had presented the petitioner with an
offer that would have resolved her Norwalk cases and
required her to serve approximately three years impris-
onment. That offer, however, was withdrawn when the
petitioner was arrested on the charges in docket #007.1
The state presented a new offer, and on January 4, 2010,
the petitioner entered a plea of guilty to one count of
sale of narcotics by a person who is not drug-dependent
in violation of § 21a-278 (b)2 in docket #007 in exchange
for the agreed upon sentence of eight years of incarcera-
tion, followed by five years of special parole, to be
served concurrently to other sentences she was then
serving or going to serve.3
On June 24, 2010, the petitioner, through her habeas
counsel, filed a petition for a writ of habeas corpus,
which was later amended on July 17, 2012. The peti-
tioner claimed that her defense counsel had provided
ineffective assistance by failing to adequately investi-
gate her history of drug use and dependence as a possi-
ble defense to § 21a-278 (b) in order to negotiate a more
favorable plea agreement.
The habeas trial was held on December 10, 2012, and
in a memorandum of decision filed on March 18, 2013,
the habeas court denied the petition. The habeas court
found: ‘‘[T]here is no reasonable probability to believe
that had defense counsel sought and obtained a sub-
stance abuse exam for his client pursuant to CADAC
[see General Statutes § 17a-693 et seq.], or had he
obtained the substance abuse records that were avail-
able at the time, the petitioner would have received a
more favorable pretrial offer, and the petitioner has
presented nothing more than speculation and conjec-
ture to support her claim that either the state’s attorney
or sentencing court would have been swayed by such
information to do so. . . . [S]ince there was already
an offer outstanding at the time of the petitioner’s arrest
on docket #007 that would have required her to accept
a prison sentence, there is no reasonable construction
of the evidence presented that would support the peti-
tioner’s claim that, had counsel obtained and presented
such substance abuse information, either the court or
the state’s attorney would have been willing to consider
a long-term drug treatment program as an alternative
disposition . . . .’’ (Footnote omitted.)
The court further found: ‘‘[T]he petitioner’s claim that
she would have elected to go to trial had she known
that she was being sentenced as a [person who is not
drug-dependent] under General Statutes § 21a-278 (a)
simply lacked credibility. First, the petitioner has a prior
conviction for sale of narcotics under the same statute,
which, although some time ago, undermines her credi-
bility that she did not understand that the present con-
viction under the same statute was as a [person who
is not drug-dependent]. Additionally, the petitioner was
well versed in the criminal justice system, and this court
does not believe that she was unaware of the significant
exposure she faced on all files had she made the fool-
hardy decision to reject a plea deal on this one file
when her only other option was to proceed to separate
trials on eight [files]. Even had a fact finder believed
she was drug-dependent and convicted her of selling
narcotics under General Statutes § 21a-277, her overall
exposure on all charges and files then pending still
would have been multiple times the plea agreement
negotiated by her attorney. By proceeding to trial, she
may have won that battle, but she surely would have
lost the war. In fact, when given this option by the
trial court a few days prior to entering her pleas, the
petitioner quickly declined.’’ (Footnotes omitted.) The
court concluded that ‘‘the petitioner has failed to estab-
lish she was prejudiced, because she has failed to estab-
lish that there is a reasonable probability that, but for
counsel’s advice, she was willing to proceed to trial.’’
On March 28, 2013, the petitioner filed a petition for
certification to appeal from the judgment denying her
amended petition, which the habeas court denied on
April 4, 2013. This appeal followed.
We begin by setting forth the appropriate standard
of review and legal principles that inform our analysis.
‘‘Faced with the habeas court’s denial of certification
to appeal, a petitioner’s first burden is to demonstrate
that the habeas court’s ruling constituted an abuse of
discretion. . . . If the petitioner succeeds in sur-
mounting that hurdle, the petitioner must then demon-
strate that the judgment of the habeas court should be
reversed on its merits. . . . To prove an abuse of dis-
cretion, the petitioner must demonstrate that the [reso-
lution of the underlying claim involves issues that] 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. . . . In determining whether the
habeas court abused its discretion in denying the peti-
tioner’s request for certification, we necessarily must
consider the merits of the petitioner’s underlying claims
to determine whether the habeas court reasonably
determined that the petitioner’s appeal was frivolous.
‘‘ (Citation omitted; internal quotation marks omitted.)
Michael G. v. Commissioner of Correction, 153 Conn.
App. 556, 559, 102 A.3d 132 (2014), cert. denied, 315
Conn. 916, A.3d (2015).
‘‘A criminal defendant is constitutionally entitled to
adequate and effective assistance of counsel at all criti-
cal stages of criminal proceedings. . . . This right
arises under the sixth and fourteenth amendments to
the United States constitution and article first, § 8, of
the Connecticut constitution. . . . It is axiomatic that
the right to counsel is the right to the effective assis-
tance of counsel. . . . The United States Supreme
Court, long before its recent decisions in Missouri v.
Frye, U.S. , 132 S. Ct. 1399, 182 L. Ed. 2d 379
(2012), and Lafler v. Cooper, U.S. , 132 S. Ct.
1376, 182 L. Ed. 2d 398 (2012), recognized that the two
part test articulated in Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), applies
to ineffective assistance of counsel claims arising out of
the plea negotiation stage.’’ (Citation omitted; internal
quotation marks omitted.) Barlow v. Commissioner of
Correction, 150 Conn. App. 781, 792, 93 A.3d 165 (2014).
‘‘In its analysis, a reviewing court may look to the
performance prong or to the prejudice prong, and the
petitioner’s failure to prove either is fatal to a habeas
petition. . . . The prejudice inquiry in claims arising
from counsel’s advice during the plea process differs
from the analysis of claims following conviction after
trial. . . . In Hill v. Lockhart, 474 U.S. 52, 106 S. Ct.
366, 88 L. Ed. 2d 203 (1985), the Supreme Court of the
United States articulated a modified prejudice standard
for cases in which the conviction has resulted from a
guilty plea. . . . In order to establish prejudice in such
cases, the petitioner must demonstrate that there is a
reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted
on going to trial.’’ (Citations omitted; footnotes omitted;
internal quotation marks omitted.) Delvecchio v. Com-
missioner of Correction, 149 Conn. App. 494, 500, 88
A.3d 610, cert. denied, 312 Conn. 904, 91 A.3d 906 (2014);
see also Washington v. Commissioner of Correction,
287 Conn. 792, 833, 835, 950 A.2d 1220 (2008); Crawford
v. Commissioner of Correction, 285 Conn. 585, 598, 940
A.2d 789 (2008); Johnson v. Commissioner of Correc-
tion, 285 Conn. 556, 576, 941 A.2d 248 (2008); Axel D.
v. Commissioner of Correction, 135 Conn. App. 428,
432–33, 41 A.3d 1196 (2012). In an earlier opinion, Copas
v. Commissioner of Correction, 234 Conn. 139, 151, 662
A.2d 718 (1995), however, our Supreme Court interpre-
ted Hill as requiring the petitioner to show ‘‘that he
would not have pleaded guilty, that he would have
insisted on going to trial, and that the evidence that
had been undiscovered or the defenses he claims should
have been introduced were likely to have been success-
ful at trial.’’ In Carraway v. Commissioner of Correc-
tion, 144 Conn. App. 461, 471 n.9, 474–76, 72 A.3d 426
(2013), cert. granted, 312 Conn. 925, 95 A.3d 521 (2014),
this court declined to follow the prejudice standard as
articulated in Copas because it determined that the
Hill standard was controlling as a matter of federal
constitutional law as also recognized by our Supreme
Court in Washington, Crawford, and Johnson.
We conclude, after a thorough review of the record,
that the petitioner has not demonstrated that the resolu-
tion of any underlying claim involves issues that 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. The habeas court found the following:
that the petitioner had extensive experience with the
criminal justice system; that she had a prior conviction
under § 21a-278 (b); that her responses during the plea
canvass by the court confirmed that her defense counsel
explained the elements of the offense of sale of narcot-
ics by a person who is not drug-dependent and the
five year mandatory minimum sentence; that the court
explained to her that her rejection of the offer would
result in consecutive trials on all of her pending charges,
including other charges that had mandatory minimum
sentences; that there was the possibility of an ultimate
sentence ‘‘substantially in the double figures’’; that the
court determined that the petitioner understood the
substantial benefit that she would receive by pleading
guilty to the offense of sale of narcotics by a person
who is not drug-dependent in violation of § 21a-278 (b),
instead of electing to be tried on all of the outstanding
charges; and that because of the foregoing findings, she
failed to establish that she suffered any prejudice, i.e.,
the petitioner did not demonstrate that there was a
reasonable probability that, but for counsel’s errors,
she would not have pleaded guilty and would have
insisted on going to trial. Hill v. Lockhart, supra, 474
U.S. 59; Washington v. Commissioner of Correction,
supra, 287 Conn. 833; Crawford v. Commissioner of
Correction, supra, 285 Conn. 585; Johnson v. Commis-
sioner of Correction, supra, 285 Conn. 576; Delvecchio
v. Commissioner of Correction, supra, 149 Conn. App.
500; Carraway v. Commissioner of Correction, supra,
144 Conn. App. 474–76; Axel D. v. Commissioner of
Correction, supra, 135 Conn. App. 428. Accordingly, we
conclude that the court did not abuse its discretion in
denying the petition for certification to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
We also note that at the time of her arrest on the charges in docket
#007, the petitioner had thirty-one prior convictions, nine of which were
drug related.
2
General Statutes § 21a-278 (b) provides in relevant part: ‘‘Any person
who manufactures, distributes, sells, prescribes, dispenses, compounds,
transports with the intent to sell or dispense, possesses with the intent to
sell or dispense, offers, gives or administers to another person any narcotic
substance, hallucinogenic substance other than marijuana, amphetamine-
type substance, or one kilogram or more of a cannabis-type substance . . .
and who is not, at the time of such action, a drug-dependent person, for a
first offense shall be imprisoned not less than five years or more than twenty
years . . . .’’
3
We note that as part of the plea agreement, the state agreed not to
prosecute the remainder of the cases that were pending against the petitioner
in Norwalk. The petitioner, however, was serving a six month sentence for
contempt of court, which she received in Norwalk on November 20, 2009,
and a concurrent four year sentence for the criminal violation of probation
she received in Bridgeport on December 23, 2009.