Mincewicz v. Commissioner of Correction ( 2015 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
JOSEPH MINCEWICZ v. COMMISSIONER
OF CORRECTION
(AC 36781)
Beach, Alvord and Mullins, Js.
Argued September 22—officially released December 29, 2015
(Appeal from Superior Court, judicial district of
Tolland, Sferrazza, J.)
Mary H. Trainer, assigned counsel, for the appel-
lant (petitioner).
Nancy L. Walker, deputy assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Eva B. Lenczewski, supervisory assistant
state’s attorney, for the appellee (respondent).
Opinion
BEACH, J. The petitioner, Joseph Mincewicz, appeals
from the judgment of the habeas court denying his
amended petition for a writ of habeas corpus. In this
appeal, the petitioner claims that the court, Sferrazza,
J., erred when it found that he had waived his claim
of ineffective assistance of counsel. We disagree and
therefore affirm the judgment of the habeas court.
The following facts and procedural history are rele-
vant to the disposition of the petitioner’s appeal. The
petitioner pleaded guilty on August 12, 2008, to three
crimes: (1) robbery in the first degree, (2) possession
of narcotics, and (3) attempt to commit larceny in the
fourth degree. In accordance with the plea bargain, the
trial court, Fasano, J., sentenced the petitioner to nine
years of incarceration followed by ten years of spe-
cial parole.
The amended petition for a writ of habeas corpus
alleged ineffective assistance of counsel at the plea
hearing, judicial error,1 and prosecutorial misconduct.2
Following a hearing, the court denied the petition in a
written decision. As to the claim of ineffective assis-
tance of counsel, the court found that the petitioner
waived any claim3 of deficient representation by his
trial counsel, including her failure to pursue an insanity
defense on the petitioner’s behalf by entering a valid
guilty plea. This appeal followed the habeas court’s
grant of certification to appeal.
The petitioner contends that the court erred when it
found that he waived his claim of ineffective assistance
of counsel arising from counsel’s failure to inquire ade-
quately and to develop evidence regarding the petition-
er’s mental state at the time of the offenses. The
petitioner essentially argues that counsel’s ineffective
assistance contributed to his decision to plead guilty,
and, as such, his claim was not waived by the entry of
the guilty plea. In the circumstances of this case, we
do not agree.
We begin by setting forth our standard of review for
a denial of a petition for a writ of habeas corpus. ‘‘The
conclusions reached by the trial court in its decision
to dismiss [a] habeas petition are matters of law, subject
to plenary review . . . . [When] the legal conclusions
of the court are challenged, [the reviewing court] must
determine whether they are legally and logically correct
. . . and whether they find support in the facts that
appear in the record.’’ (Internal quotation marks omit-
ted.) Grant v. Commissioner of Correction, 121 Conn.
App. 295, 298, 995 A.2d 641, cert. denied, 297 Conn. 920,
996 A.2d 1192 (2010). Thus, in evaluating the court’s
conclusion that an intentional and knowing waiver
occurred, we utilize a plenary standard of review. As
to the court’s factual findings underlying its conclusion
that a waiver occurred, ‘‘we are mindful that [t]he
habeas court is afforded broad discretion in making its
factual findings, and those findings will not be disturbed
[on appeal] unless they are clearly erroneous. . . .
Thus, [t]his court does not retry the case or evaluate
the credibility of the witnesses. . . . Rather, we must
defer to the [trier of fact’s] assessment of the credibility
of the witnesses based on its firsthand observation of
their conduct, demeanor and attitude. . . . The habeas
judge, as the trier of facts, is the sole arbiter of the
credibility of witnesses and the weight to be given to
their testimony. . . . Thus, the court’s factual findings
are entitled to great weight. . . . Furthermore, [a] find-
ing of fact is clearly erroneous when there is no evi-
dence in the record to support it . . . or when although
there is evidence to support it, the reviewing court on
the entire evidence is left with the definite and firm
conviction that a mistake has been committed.’’ (Inter-
nal quotation marks omitted.) Fine v. Commissioner
of Correction, 147 Conn. App. 136, 142, 81 A.3d 1209(2013).
The general rule is that a guilty plea waives any nonju-
risdictional defects that occurred prior to the entry of
the plea, including any alleged constitutional depriva-
tions. State v. Niblack, 220 Conn. 270, 277, 596 A.2d 407(1991) (holding that petitioner was barred from ‘‘the
later assertion of a constitutional challenge to a pretrial
proceeding’’ because his Alford plea constituted waiver
of defects antecedent to entry of plea); State v. Madera,
198 Conn. 92, 97, 503 A.2d 136 (1985). As long as the
record shows that the guilty plea was ‘‘voluntary, know-
ing, intelligent, and done with sufficient awareness of
the relevant circumstances and likely consequences,’’
the plea is valid. (Internal quotation marks omitted.)
Buckley v. Warden, 177 Conn. 538, 542, 418 A.2d 913(1979). ‘‘[A] criminal defendant [who] has solemnly
admitted in open court that he is in fact guilty of the
offense with which he is charged . . . may not there-
after raise independent claims relating to the depriva-
tion of constitutional rights that occurred prior to the
entry of the guilty plea.’’ Id., 542–43. ‘‘[The] waiver rule
means that a claim of the ineffective assistance of coun-
sel . . . is not sufficient to call the validity of a guilty
plea and the judgment of conviction based thereon into
question. . . . [I]t must be demonstrated that there
was such an interrelationship between the ineffective
assistance of counsel and the plea that it can be said
[that] the plea was not voluntary and intelligent because
of ineffective assistance.’’ (Citations omitted.) Dukes v.
Warden,161 Conn. 337, 343–44, 288 A.2d 58 (1971), aff’d,
406 U.S. 250, 92 S. Ct. 1551, 32 L. Ed. 2d 45 (1972).
The facts underlying the petitioner’s claim inform our
review of the question of whether the petitioner waived
his claim of ineffective assistance of counsel by plead-
ing guilty. Shortly after her appointment to represent
the petitioner, counsel pursued a psychiatric defense
to the charges against the petitioner, by his request.
She pursued this course even though, according to the
petitioner’s testimony at the habeas trial, she advised
him not to pursue an insanity defense. Notwithstanding
her reservations about the insanity defense, counsel
and a social worker obtained authorization to hire a
well-known expert in psychiatry, Peter Morgan. Coun-
sel requested Morgan to evaluate the petitioner’s com-
petency to stand trial or to plead guilty, and to
determine whether the petitioner had any viable psychi-
atric defenses. In addition to interviewing the petitioner,
Morgan examined records from a psychiatric facility
that had treated the petitioner at about the time that
the offenses occurred. Morgan requested additional
records, and counsel provided them. Relying on this
information, Morgan advised counsel that the petitioner
did not have a viable psychiatric defense. Counsel
informed the petitioner immediately of Morgan’s evalu-
ation. According to counsel’s testimony at the habeas
trial, the petitioner continued to ‘‘flip-flop’’ over
whether to pursue the defense before he finally opted
to plead guilty. The petitioner testified that his ultimate
decision to plead guilty was made without regard to
the conclusions drawn in Morgan’s report.
We agree with the habeas court’s conclusion that the
petitioner waived his ineffective assistance of counsel
claim. The petitioner first argues that counsel’s ineffec-
tive assistance stemmed from the fact that she encour-
aged the petitioner to accept a plea bargain and to give
up his insanity defense before she received Morgan’s
recommendation. This argument has been waived, how-
ever, because the record reveals that the court’s finding
that counsel’s advice preceded and did not affect the
petitioner’s decision to plead guilty was not clearly erro-
neous.4 The record does not compel a finding that coun-
sel’s early advice was so interrelated with the
petitioner’s subsequent guilty plea that it calls into ques-
tion the validity of the plea. See Dukes v. Warden, supra,
161 Conn. 344. Counsel’s initial advice did not deter the
petitioner from urging counsel to continue to explore
affirmative defenses; indeed, he testified that he did not
decide to enter a plea until ‘‘the last moment.’’5
Second, counsel remained steadfast in her position
that the petitioner should desert his attempt to enter
an insanity defense after she received Morgan’s expert
advice. Counsel’s recommendation, although not based
on expert advice at the particular point referenced by
the petitioner, ultimately was reinforced by expert
input. Thus, the petitioner, who had been kept fully
informed, has not shown that this recommendation
rises to the level of ineffective assistance that would
render his plea unintelligent or involuntary.6
The petitioner also argues that counsel provided inef-
fective assistance because she supplied Morgan with
psychiatric records from only one institution rather
than from all of the institutions at which he received
treatment. He argues that ‘‘these records were mishan-
dled . . . [counsel] is not aware whether all the
records were ever collected, was not aware if all the
records were forwarded to the expert witness, and was
not aware that her plea to the [petitioner] was based
on missing and/or partial information as to his ability
to succeed with an insanity or diminished capacity
defense.’’ The petitioner asserts that if counsel had pro-
vided Morgan with all of his medical records, counsel
would have changed her recommendation that the peti-
tioner accept a plea deal. Instead, he claims that counsel
‘‘continued to pressure [him] to accept a plea offer
. . . .’’ This argument, in addition to being unsupported
by evidence from the habeas trial,7 was waived by the
petitioner when he decided to enter his guilty plea. He
provided no evidence to the habeas court that he relied
on counsel’s recommendation or Morgan’s allegedly
deficient report when deciding to plead guilty. In fact,
when asked at the habeas trial whether he considered
Morgan’s report when entering his plea, the petitioner
replied, ‘‘Not at all.’’ Thus, what the petitioner claims
is ineffective assistance in this matter does not negate
the knowing, voluntary, and intelligent nature of the
plea that he ultimately entered.
Under Dukes, the entry of a guilty plea waives future
ineffective assistance of counsel claims unless the inef-
fective assistance is so intertwined with the guilty plea
that the plea cannot be considered knowing, voluntary,
and intelligent. Dukes v. Warden, supra, 161 Conn. 343–
44. The petitioner was unable to show that counsel’s
failure to pursue an insanity defense to his satisfaction
rendered his plea invalid. If any ineffective assistance
conceivably occurred, it was antecedent to the plea
hearing and known by the petitioner and, as such, was
effectively waived upon entry of the plea. By the peti-
tioner’s own admission, he pleaded guilty for reasons
unrelated to the probability of the success of an insanity
defense.8 Therefore, the court’s conclusion that the peti-
tioner waived his claim of ineffective assistance of
counsel was proper.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The habeas court granted summary judgment as to the petitioner’s claim
that the trial court erred during arraignment and during the plea canvass.
2
The court found that there was no evidentiary support for the allegation
of prosecutorial misconduct.
3
The petitioner raised additional allegations of ineffective assistance of
counsel at the habeas trial, but they were denied. He has appealed only on the
ground that counsel performed deficiently in failing to develop an insanity
defense and that he did not waive this claim by pleading guilty.
4
Additionally, during the plea proceeding, the following colloquy
occurred:
‘‘The Court: You understand by pleading to these charges and admitting
violation of probation you’re giving up the right to try the cases to the court
or judge where appropriate with the assistance of your attorney, giving up
your right to confront, cross-examine witnesses against you, your right
against self-incrimination, your right to put on evidence on your own behalf,
and your right to continue to plead not guilty and deny the violation; do
you understand you’re giving up those trial and hearing rights?
‘‘[The Petitioner]: I understand.’’
5
During the plea canvass, the petitioner informed the trial court that he
was satisfied with counsel’s performance:
‘‘The Court: Have you had enough time to discuss these matters with
your attorney?
‘‘[The Petitioner]: Yes.
‘‘The Court: Are you satisfied with her advice and counsel?
‘‘[The Petitioner]: Yes.’’
6
Moreover, the petitioner testified at the plea proceeding that, despite his
use of psychiatric medications, he understood the nature of the proceeding:
‘‘The Court: As you stand before the court right now, are you under the
influence of drugs, alcohol, medication, any substance right now?
‘‘[The Petitioner]: I’m on meds.
‘‘The Court: All right. What’s the nature of the—
‘‘[The Petitioner]: Psychiatric meds.
‘‘The Court: Anything that affects your ability to understand the nature
of the proceedings, understand what you’re doing today?
‘‘[The Petitioner]: No.’’
7
The record contains no evidence that Morgan would have changed his
mind about the viability of the petitioner’s insanity defense if he had received
the additional records from the other psychiatric institutions that treated
the petitioner, or that counsel would have advised the petitioner differently
if Morgan recommended proceeding with an insanity defense after having
received the records. No copies of records from other institutions were
introduced at the habeas trial.
8
The petitioner testified at the habeas trial that he pleaded guilty in an
effort to avoid the risk of classification as a persistent dangerous felony
offender.