Patterson v. Commissioner of Correction ( 2014 )

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CLARENCE PATTERSON v. COMMISSIONER
OF CORRECTION
(AC 33515)
Gruendel, Bear and West, Js.*
Argued February 10—officially released May 6, 2014
(Appeal from Superior Court, judicial district of
Tolland, Mullarkey, J.)
Kenneth Paul Fox, assigned counsel, for the appel-
lant (petitioner).
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were David S. Shepack, state’s
attorney, and Marcia A. Pillsbury, deputy assistant
state’s attorney, for the appellee (respondent).
Opinion
PER CURIAM. The petitioner, Clarence Patterson,
appeals following the partial denial of his petition for
certification to appeal from the judgment of the habeas
court denying his petition for a writ of habeas corpus.
In this appeal, the petitioner claims that the habeas
court (1) abused its discretion in denying in part his
petition for certification to appeal, and (2) improperly
determined that his trial counsel did not render ineffec-
tive assistance. We dismiss the appeal.
The following facts are relevant to our disposition of
this case. The underlying criminal charges arose from
a residential burglary that occurred on November 2,
2004. The petitioner was charged with burglary in the
third degree in violation of General Statutes § 53a-103,
larceny in the fourth degree in violation of General
Statutes § 53a-125, and criminal mischief in the third
degree in violation of General Statutes § 53a-117.
On the afternoon of March 31, 2008, the petitioner
accepted a plea agreement of three years incarceration
to run consecutively to his ‘‘present sentence’’ in
exchange for guilty pleas on all of the charges. (Empha-
sis added.) The court, B. Kaplan, J., thoroughly can-
vassed the petitioner and determined that his plea was
‘‘knowingly and voluntarily made with the assistance
of competent counsel. Thereafter, it sentenced the peti-
tioner, as agreed, to a total effective sentence of three
years to run consecutive to his present sentence.’’
(Emphasis added.)
At the time that the petitioner entered into the plea
agreement, he was serving a five year sentence stem-
ming from guilty pleas entered on March 30, 2006, in
Stamford (Stamford sentence). Additionally, he was
serving a three year sentence stemming from guilty
pleas entered on February 22, 2006, in Norwalk (Nor-
walk sentence). The sentences were running concur-
rently.
The judgment mittimus provided that the petitioner’s
sentence was to run consecutively to his ‘‘present sen-
tence,’’ but it did not specifically refer to either his
Norwalk or Stamford sentence. Consistent with its prac-
tice, the Department of Correction interpreted the judg-
ment mittimus as referring to the petitioner’s
controlling sentence—that is, the longer sentence that
he was serving. Accordingly, the petitioner’s sentence
pursuant to the subject plea agreement was three years
incarceration to run consecutively to his five year Stam-
ford sentence.
On August 13, 2010, the petitioner filed an amended
petition for a writ of habeas corpus, alleging, in perti-
nent part, ineffective assistance of his trial counsel,
Tina Sypek D’Amato. The petitioner alleged that
D’Amato failed to clarify whether the plea agreement
Consequently, he alleged ‘‘that in agreeing to accept
a sentence of three years consecutive to his ‘present
sentence,’ he agreed to accept a three year sentence
that would run consecutive to the three year [Norwalk
sentence] . . . as opposed to running consecutive to
the five year [Stamford] sentence . . . .’’ Because he
believed that he would be incarcerated for a total of
six years, rather than a total of eight years, he alleged
that D’Amato rendered deficient performance by failing
to ensure that his guilty pleas were knowing, intelligent,
and voluntary. He contends that absent D’Amato’s defi-
cient performance, he would have rejected the plea
agreement and proceeded to trial.
Following a two day trial, the habeas court, Mullar-
key, J., issued a memorandum of decision denying the
petitioner’s amended petition for a writ of habeas cor-
pus. It determined that D’Amato did not render ineffec-
tive assistance because her performance was not
deficient and the petitioner failed to demonstrate preju-
dice. With respect to D’Amato’s performance, the
habeas court found that she never told the petitioner
that his sentence pursuant to the plea agreement would
run consecutively to his three year Norwalk sentence.
The court additionally determined that the petitioner
knew that he was serving both the Norwalk and Stam-
ford sentences, but that despite this knowledge, he
failed to request clarification as to what constituted his
‘‘present sentence’’ prior to accepting the plea
agreement. The court ultimately determined that in light
of his criminal history, the petitioner was highly familiar
with the sentencing process and, therefore, his testi-
mony that he misunderstood the terms of the plea
agreement was not credible.1 The petitioner filed a peti-
tion for certification to appeal, which the habeas court
partially denied on May 17, 2011.2 This appeal followed.
‘‘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. Abuse of discretion is the proper standard
because that is the standard to which we have held
other litigants whose rights to appeal the legislature
has conditioned upon the obtaining of the trial court’s
permission. . . . 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. . . . If this burden is not satisfied,
then the claim that the judgment of the habeas court
should be reversed does not qualify for consideration by
this court.’’ (Citation omitted; internal quotation marks
omitted.) Spyke v. Commissioner of Correction, 145
Conn. App. 419, 423, 75 A.3d 738, cert. denied, 310 Conn.
932, 78 A.3d 858 (2013).
‘‘[T]he governing legal principles in cases involving
claims of ineffective assistance of counsel arising in
connection with guilty pleas are set forth in Strickland
[v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984)] and Hill [v. Lockhart, 474 U.S. 52, 106
S. Ct. 366, 88 L. Ed. 2d 203 (1985)]. [According to]
Strickland, [an ineffective assistance of counsel] claim
must be supported by evidence establishing that (1)
counsel’s representation fell below an objective stan-
dard of reasonableness, and (2) counsel’s deficient per-
formance prejudiced the defense because there was a
reasonable probability that the outcome of the proceed-
ings would have been different had it not been for the
deficient performance. . . . The first prong requires a
showing that counsel made errors so serious that coun-
sel was not functioning as the counsel guaranteed . . .
by the [s]ixth [a]mendment. . . . Under . . . Hill
. . . which . . . modified the prejudice prong of the
Strickland test for claims of ineffective assistance when
the conviction resulted from a guilty plea, the evidence
must demonstrate that there is a reasonable probability
that, but for counsel’s errors, [the petitioner] would not
have pleaded guilty and would have insisted on going
to trial.’’ (Emphasis in original; internal quotation marks
omitted.) Kennedy v. Commissioner of Correction, 144
Conn. App. 68, 72–73, 72 A.3d 1133, cert. denied, 310
Conn. 944, 80 A.3d 908 (2013).
After conducting a careful review of the record, we
agree with the habeas court’s determination that the
petitioner failed to demonstrate that D’Amato’s perfor-
mance fell below an objective standard of reasonable-
ness. ‘‘[T]he reasonable expectations of the petitioner,
when entering into a plea, are of great import because
of the significance of the constitutional rights that are
forfeited when choosing to plead guilty. . . . The ulti-
mate goal, however, in construing any plea agreement
when there is a dispute as to its terms is the real intent
of the parties . . . .’’ (Citation omitted; internal quota-
tion marks omitted.) State v. Dixson, 93 Conn. App.
171, 180, 888 A.2d 1088, cert. denied, 277 Conn. 917,
895 A.2d 790 (2006). In this case, the habeas court found
that there was ‘‘no credible evidence . . . that the plea
agreement accepted by the petitioner on March 31, 2008,
contemplated that the three year sentence would run
consecutive to the three year [Norwalk] sentence . . .
as the petitioner contends.’’ The court credited
D’Amato’s testimony that she did not tell the petitioner
that his sentence would run consecutively to either the
three year Norwalk sentence or the five year Stamford
sentence. See Kennedy v. Commissioner of Correction,
supra, 144 Conn. App. 73 (‘‘[t]he habeas judge, as the
trier of facts, is the sole arbiter of the credibility of
witnesses and the weight to be given their testimony’’
[internal quotation marks omitted]).
Moreover, there is no dispute that the petitioner was
aware that he was then serving both the three year
Norwalk sentence and the five year Stamford sentence.
Despite this knowledge, he did not ask D’Amato to
clarify the ‘‘present sentence’’ mentioned in the plea
agreement, nor did he ask Judge Kaplan to provide
such clarification. In fact, when the court canvassed
the petitioner prior to accepting his pleas, it stated,
‘‘[a]nd the understanding is that . . . [your] sentence
. . . will be three years consecutive in addition to your
present sentence . . . ?’’ The petitioner stated that he
understood, never indicating any uncertainty as to what
constituted his ‘‘present’’ sentence.3
Finally, the habeas court relied on the finding of the
trial court, B. Kaplan, J., in its denial of the petitioner’s
motion to correct an illegal sentence. The habeas court
stated that, ‘‘[a]s noted by [Judge Kaplan] . . . an
inmate’s present sentence in its common and ordinary
language would be the maximum sentence [he or she
is] serving . . . .’’ (Internal quotation marks omitted.)
The habeas court determined that given the petitioner’s
familiarity with the criminal justice system—he had
twenty-seven prior convictions largely for burglary in
the third degree and larceny in the third degree—his
contention that he did not know that the plea agreement
referred to his five year Stamford sentence was not
credible.4 The habeas court concluded, therefore, that
‘‘[the petitioner] got exactly what [he] bargained for
. . . .’’ (Internal quotation marks omitted.)
On the basis of the foregoing analysis, we agree with
the habeas court’s determination that there was no cred-
ible evidence supporting the petitioner’s purported
belief that his sentence pursuant to the plea agreement
would run consecutively to his three year Norwalk sen-
tence. Accordingly, we conclude that D’Amato did not
render deficient performance. In light of this determina-
tion, we need not reach the prejudice prong of Strick-
land and Hill. We thus conclude that the habeas court
did not abuse its discretion in denying in part the peti-
tion for certification to appeal.
The appeal is dismissed.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The habeas court further determined that, even if D’Amato rendered
deficient performance, the petitioner failed to demonstrate prejudice. It
found that had the petitioner understood the terms of the plea agreement,
there was no reasonable probability that he would have proceeded to trial
because he would have faced a much lengthier sentence due to his status
as a persistent felony offender.
2
The habeas court denied the petition for certification to appeal with
respect to seven of the eight claims presented, but granted the petition as
to the claim that ‘‘the habeas corpus court erred in rejecting the argument
that the petitioner’s sentence was unlawful because the sentencing court
failed to abide by [General Statutes] § 53a-37, where the plain language of
that statute requires the sentencing court to state in conclusion the effective
sentence imposed.’’ (Internal quotation marks omitted.) This claim is not
the subject of this appeal.
3
The petitioner contends that Judge Kaplan distinguished between the
five year Stamford sentence and the three year Norwalk sentence by referring
to the former as his ‘‘current sentence,’’ and to the latter as his ‘‘present
sentence.’’ For this reason, the petitioner argues, he rejected a plea offer
on the morning of March 31, 2008, of three years to run consecutively to
his ‘‘current’’ sentence, but later that afternoon, accepted a plea agreement
of three years to run consecutively to his ‘‘present’’ sentence. The petitioner’s
contention that there is any discernable difference between the court’s use
of the terms ‘‘current sentence’’ and ‘‘present sentence’’ is untenable. The
court did not indicate any distinction between the terms, nor can such a
distinction reasonably be drawn.
Moreover, the habeas court found that the petitioner’s testimony with
respect to this purported distinction in terms was contradicted by his later
testimony that the court and the prosecution may not have been aware of
his five year Stamford sentence at all, in which case the court could not
have intended the words ‘‘current sentence’’ to refer to that sentence. The
petitioner argued that the distinction in terms was the only logical explana-
tion for his rejection of the plea offer on the morning of March 31, 2008,
but his acceptance of a virtually identical offer just hours later. The habeas
court, however, generated another logical explanation—namely, that after
the petitioner rejected the morning plea offer, the trial court reminded him
that he would be charged as a felony offender, which would increase his
total sentence exposure from six and one-half years to eleven and one-
half years.
4
The petitioner’s knowledge of the sentencing process is exemplified by
D’Amato’s testimony before the habeas court that the petitioner ‘‘actually
taught [her] a little bit about parole and guidelines,’’ insofar as he personally
calculated his parole eligibility on the basis of various plea offers made by
the prosecution.