Douglas Davis v. Warden
CV08 4002278
Decided: January 17, 2012
I.?Procedural history
The petitioner, Douglas Davis, was the defendant in a matter pending in the New Haven Judicial District under Docket No. CR04?0035946. ? From the evidence presented, it could reasonably be found that from sometime in the late afternoon and continuing into the early evening hours of October 1, 2004, the petitioner and others were shooting dice and gambling in the area of 316 Greenwich Avenue in the City of New Haven. ? The petitioner had consumed a significant amount of alcohol prior to and during the course of these events, indicating in his statement to police that he’d consumed four (4) forty-ounce bottles of beer during the course of the day prior to arriving at the dice game at approximately 2:00 pm, and one pint each of ?Tang??1?and Hennessey during the course of the dice game. ? Sometime shortly before 7:30 pm, a verbal argument erupted between the petitioner and the victim, Mr. Robert Washington, when the petitioner disputed the validity of Mr. Washington’s roll of the dice and demanded that Mr. Washington return money he had just taken from the pot. ? Mr. Washington refused to return the money, more words were exchanged, and the two began to approach each other as if they were about to engage in a physical altercation. ? At this point, the petitioner pulled a handgun out of his waistline area and said something to the effect of ?Don’t move? or ?Don’t come near me.? ? According to witnesses, Mr. Washington continued to advance towards the petitioner, and also may have made a gesture as if he was going to hit the petitioner with his fist, and was shot in the abdomen area, a wound from which he later died. ? The petitioner has always maintained that the gun went off accidentally and that he did not intend to shoot the victim. ? The petitioner was originally charged with Murder, General Statutes ??53a?54a, and Carrying a Pistol without a Permit, General Statutes ??29?35.
Shortly after the petitioner’s arraignment on the above charges, Attorney Lawrence Hopkins (hereinafter referred to as ?trial counsel? or ?defense counsel?) was appointed to represent him as a special public defender. ? After some pretrial negotiations, on June 8, 2005, the petitioner entered guilty pleas to a substitute information charging him with Manslaughter First Degree with a Firearm, General Statutes ??53a?55a, and Possession of a Pistol without a Permit, General Statutes ??29?35. ? The substance of the plea agreement was that the petitioner would receive a total effective sentence of not less than 20 years and not more than 25, with the State and defense counsel having a right present argument to the court as to the appropriate sentence within that range. ? A presentence investigation was ordered, and sentencing was continued to August 3, 2005. ? Following the sentencing hearing, the court, Damiani, J., imposed a sentence of 20 years to serve, 5 years of those years being minimum mandatory incarceration, on the Manslaughter with a Firearm charge, and a consecutive sentence of 5 years to serve, one year being minimum mandatory, on the Pistol without a Permit charge, for a total effective sentence of 25 years, with 6 years being minimum mandatory incarceration.2
The petitioner commenced the instant action by filing a petition for writ of habeas corpus challenging the legality of his detention on February 27, 2008. ? Following the appointment of counsel, a one-count amended petition claiming ineffective assistance of trial counsel was filed on July 5, 2011. ? The respondent filed a return on August 5, 2011, and the matter was tried to the court November 7, 2011. ? Defense counsel and the petitioner were the only witnesses to testify at the habeas trial.
II.?Law
The longstanding test for determining the validity of a guilty plea is ?whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.? ?? Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (citing North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)).
?[T]he decision to plead guilty before the evidence is in frequently involves the making of difficult judgments. ? All the pertinent facts normally cannot be known unless witnesses are examined and cross-examined in court. ? Even then the truth will often be in dispute. ? In the face of unavoidable uncertainty, the defendant and his counsel must make their best judgment as to the weight of the State’s case. ? Counsel must predict how the facts, as he understands them, would be viewed by a court. ? If proved, would those facts convince a judge or jury of the defendant’s guilt? ? On those facts would evidence seized without a warrant be admissible? ? Would the trier of fact on those facts find a confession voluntary and admissible? ? Questions like these cannot be answered with certitude; ?yet a decision to plead guilty must necessarily rest upon counsel’s answers, uncertain as they may be. ? Waiving trial entails the inherent risk that the good-faith evaluations of a reasonably competent attorney will turn out to be mistaken either as to the facts or as to what a court’s judgment might be on given facts.
That a guilty plea must be intelligently made is not a requirement that all advice offered by the defendant’s lawyer withstand retrospective examination in a post-conviction hearing.?
McMann v. Richardson, 397 U.S. 759, 769?70, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). ??[The United States Supreme Court] has recognized that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial. ?Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). ??The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel’s skill and knowledge is necessary to accord defendants the ample opportunity to meet the case of the prosecution to which they are entitled.? ?Id. 685.
?Where ? a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases ? [A] defendant who pleads guilty upon the advice of counsel may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.? ?(Internal quotation marks omitted.) ?Hill v. Lockhart, supra, 474 U.S. at 56?57.[T]he defendant must show that counsel’s representation fell below an objective standard of reasonableness.? ?Id. 57.[T]he performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.? ?Strickland v. Washington, supra, 466 U.S. 688. ? Even if the petitioner is able to show that counsel’s performance was constitutionally deficient, they must also meet the second prong of the test, which ?focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process. ? In other words, in order to satisfy the second prong of the test, the petitioner must show 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.? ? Hill v. Lockhart, supra, 474 U.S. 59; ?see also, Johnson v. Commissioner of Correction, 285 Conn. 556, 576, 941 A.2d 248 (2008). ??In its analysis, a reviewing court may look to the performance [1st] prong or to the prejudice [2nd] prong, and the petitioner’s failure to prove either is fatal to a habeas petition.? ?Hall v. Commissioner of Correction, 124 Conn.App. 778, 783, 6 A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d 571 (2011).
In the present case, the petitioner makes fourteen separate claims and sub-claims of ineffectiveness against criminal defense counsel. ? The first group of claims asserts that trial counsel failed to conduct a proper investigation into the facts of the case and into possible defense witnesses.3???[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary ? [A] decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.? ? Strickland v. Washington, supra, 466 U.S. 691. ??[A]lthough it is incumbent upon a trial counsel to conduct a prompt investigation of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction ? counsel need not track down each and every lead or personally investigate every evidentiary possibility ? In a habeas corpus proceeding, the petitioner’s burden of proving that a fundamental unfairness had been done [by counsel’s failure to investigate] is not met by speculation ? but by demonstrable realities ? One cannot successfully attack, with the advantage of hindsight, a trial counsel’s trial choices and strategies that otherwise constitutionally comport with the standards of competence.? ?Johnson v. Commissioner of Correction, supra, 285 Conn. 583?84. ? In other words, a claim that counsel failed to investigate must be supported by actual evidence of things such as testing that was relied upon being flawed, testimonial statements having lacked credibility, or exculpatory evidence having been overlooked, and not ?grounded in speculation that, if petitioner’s counsel had conducted an additional and possibly redundant investigation, he might have discovered exonerating evidence.? ?(Emphasis in original.) ?Id. 584. ??In its analysis, a reviewing court may look to the performance [1st] prong or to the prejudice [2nd] prong, and the petitioner’s failure to prove either is fatal to a habeas petition.? ?Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.
In the present case, the petitioner’s claims that trial counsel did not conduct a sufficient investigation fail under the second prong of the Strickland test. ?Hill v. Lockhart, supra, 474 U.S. 59. ? The petitioner testified that certain additional witnesses and evidence would have supported his claim that he was highly intoxicated at the time of the incident and that the gun went off accidentally as he was removing it from his pants, which he claims would have been a basis for a conviction of Manslaughter in the Second Degree with a Firearm, General Statutes ??53a?56a, thereby substantially reducing his overall maximum prison exposure.4??However, none of these purported witnesses actually testified, nor was any actual evidence that the weapon fired accidentally actually produced, at the habeas trial. ?Johnson v. Commissioner of Correction, supra, 285 Conn. 584. ? Absent such testimony or evidence, it is not possible for the court to make a finding that the petitioner would have made the reasoned decision to reject the plea agreement and to have proceeded to trial on the charges. ?Hill v. Lockhart, supra, 474 U.S. 59.5??As such, the petitioner’s claims as to paragraphs 6a and 6b are denied. ?Id.
The petitioner’s second set of claims asserts that trial counsel failed to properly advise him as to various aspects of his case.6??These claims can be broken down into subcategories of the following: ?a; ?failure of counsel to provide adequate pre-trial advice??failing meet with the petitioner sufficiently to discuss the case, failing to advise the petitioner as to elements of the case against him, his exposure on each charge and failing to explain possible defenses; ?b. failure of counsel to provide adequate plea advice?failing to properly explain all aspects of the plea agreement to the petitioner and to make sure he understood the terms and conditions of the plea agreement; ?and c. failure of counsel to provide the petitioner with adequate post-plea advice?failing to properly advise the petitioner that he could move to withdraw his plea or move to correct the sentence based on an alleged violation of the plea agreement.
As to the claims that the trial counsel failed to provide the petitioner with adequate pretrial advice, paragraphs 6c, d, g, h and l, the court had difficulty with the credibility of both parties as to this issue. ? With respect to the petitioner, the court did not find his testimony credible, in a case where he gave a taped statement to police in which he admitted to shooting an unarmed man over a dice game, that trial counsel failed to explain to him, or that the petitioner did not understand, the obvious strengths of the State’s case against him, his limited defense options, and the reasons counsel advised the petitioner to accept a plea agreement rather than go to trial. ? The petitioner also claimed generally that trial counsel refused to take any time to speak with him about the specifics of the case and, on the morning of the plea, simply asked the petitioner how much time he was willing to take, to which the petitioner responded 20 years, that trial counsel then left for a short time before coming back and indicating only that ?It’s a go,? before leaving again without engaging in any further discussion with the petitioner. ? The next time the petitioner claims he saw trial counsel was when he was brought before the court to enter his plea. ? On the other hand, however, the court also had trouble believing the thoroughness with which trial counsel purported to have gone over these details with the petitioner when viewed in light of, among other things, trial counsel’s admission that he was not aware that the petitioner had a rather significant criminal history?7?until he received the pre-sentence investigation shortly before the sentencing date.8??A large leap is not necessary for the court to conclude that a defense attorney representing an individual charged with murder who would admittedly fail to familiarize himself with his client’s past criminal history in the normal course of preparing for pretrial negotiations might also ?short cut? the conversations he should have been having with his client about the substance of the State’s case, and the possible, although limited, defense options and how those options might have been effected by the petitioner’s own incriminating statements. ? The court struggles with the same bilateral credibility issues concerning the petitioner’s claim that trial counsel failed to advise him of the possible maximum and minimum penalties he could face on each charge, and concerning the petitioner’s claim that trial counsel failed to advise him of the elements of the offenses with which he was charged.
The ?tie-breaker,? so to speak, as to the above claims is a review of the transcript of the plea canvass. ?(Respondent’s Exhibit C, Transcript of State v. Douglas Davis, June 8, 2005.) ? The plea transcript in the present case shows that the petitioner was fully canvassed by the court, Damiani, J., that his plea was knowing, voluntary, and intelligent, and that he answered the court’s questions about being satisfied with his attorney’s advice, about having had the opportunity to speak with his attorney about the charges, elements of the offenses and maximum and minimum exposures all in the affirmative and without any hesitation or question. ?(Respondent’s Exhibit C, Transcript of State v. Douglas Davis, June 8, 2005.) ??A habeas court, as well as a trial court, may properly rely on ? the responses of the [defendant] at the time he responded to the trial court’s plea canvass, in determining that he was adequately informed of the elements of the offense charged.? ?Bowers v. Warden, 19 Conn.App. 440, 443, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989). ? This court does not find it credible that a man with the petitioner’s prior experience in the criminal justice system either did not know he was able to raise, or would have failed raise, the issues he now claims he was having with trial counsel before entering pleas on an agreement exposing him to a minimum period of incarceration at least five times longer than any sentence he had previously received.9??Id.; ? See also, State v. Wright, 76 Conn.App. 91, 108, 818 A.2d 824 (2003), cert. denied, 267 Conn. 911, 840 A.2d 1175 (2004) (considering defendant’s prior experience with the criminal justice system in considering whether Miranda rights were validly waived); ?State v. Reynolds, 126 Conn.App. 291, 304, 11 A.3d 198 (2011) (considering defendant’s prior experience with the criminal justice system in considering whether there was a valid waiver of the right to counsel). ? The plea transcript supports a finding that the petitioner had been adequately advised by trial counsel, and that the petitioner believed that he had been given adequate time to consult with his trial counsel, as to all aspects of the plea agreement prior to entering his guilty pleas. ? Therefore, the petitioner has failed to meet his burden of showing that trial counsel’s performance was constitutionally deficient under the first prong of the Strickland test. ? Hill v. Lockhart, supra, 474 U.S. at 57. ? As such, the petition for writ of habeas corpus as to paragraphs 6c, d, g, h and l are denied. ?Hall v. Commissioner of Correction, supra, 124 Conn.App. 783 (failure of the petitioner to prove either prong of the Strickland test is fatal to an ineffective assistance of counsel claim).
Paragraph 6e claims that trial counsel failed to meaningfully explain all plea offers made by the State. ? First, there was no evidence presented during this trial that there were any offers other than the one which the petitioner ultimately accepted. ? To the extent this claim is meant to allege that trial counsel did not fully discuss this particular plea offer fully and adequately with the petitioner, again, a review of the transcript of the plea supports a finding that the petitioner fully understood the terms and conditions of the plea agreement. ?Bowers v. Warden, supra, 19 Conn.App. 443. ? Therefore, the petition for writ of habeas corpus as to paragraph 6e is also denied, because the petitioner has failed to meet his burden of showing that trial counsel’s performance was constitutionally deficient. ?Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.
Paragraph 6f claims that trial counsel failed to inform the petitioner that the ?State’s plea offer was 5 years on the gun charge and 20 years on the manslaughter charge were to run consecutively not concurrently.? ? The petitioner claimed in his testimony that trial counsel led him to believe that the total effective sentence he would serve under the plea agreement would be 20 years. ? He claims that trial counsel never explained to him that he could possibly get 20 years on the manslaughter charge and an additional 5 years on the pistol without a permit charge, for a total of 25 years to serve. ? Again, as with the claims above, the transcript of the plea canvass contradicts the petitioner’s claims here. ? The court makes it perfectly clear during the plea canvass that the petitioner faced up to 25 years pursuant to the plea agreement, and the petitioner indicates that he understands.10??Additionally, the petitioner admitted under cross-examination that he heard and understood the trial when he was warned that the plea agreement could subject him to being sentenced for up to 25 years to serve. ? As such, the petitioner has failed to prove that trial counsel’s performance in advising him as to the terms and conditions of the plea agreement was constitutionally deficient. ? Hill v. Lockhart, supra, 474 U.S. at 57. ? Therefore, the claim as to paragraph 6f is denied. ?Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.
Paragraph 6i-? claims that trial counsel was ineffective in failing to ensure that the plea agreement was properly enforced. ? In other words, the petitioner insists here that the real plea deal was that he would receive a total of 20 years to serve and that trial counsel should have done something to enforce that agreement. ? Similarly, in paragraph 6i-??, the petitioner claims that trial counsel was ineffective in failing to advise the petitioner of his right to withdraw his plea after the court imposed a sentence in excess of the 20 years petitioner insists he was supposed to receive. ? Finally, paragraph 6i-??? claims that trial counsel failed to move to correct the sentence imposed by the trial court on the ground that the sentence was illegal because it exceeded the plea agreement. ? Based on the evidence and findings discussed previously within this decision, the plea agreement in the present case allowed the petitioner to be sentenced to serve anywhere from 20 to 25 years in prison, and the petitioner was sentenced within those guidelines. ? As such, there can be no finding that trial counsel’s performance was deficient for not taking some action, or not advising the petitioner to take some action, to challenge the sentence imposed, because there was no legal basis for any such claims. ? Hill v. Lockhart, supra, 474 U.S. at 57. ? Therefore, the claims in paragraph 6i-?, i-?? and i-??? are denied. ?Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.
The final two claims presented by the petitioner, paragraphs 6j and k, allege that trial counsel failed to present mitigating evidence on the petitioner’s behalf. ? Paragraph 6j claims that trial counsel failed to present mitigating evidence during pretrial negotiations with the State’s Attorney. ? As with the other claims, this one also fails because the petitioner has not met his burden to prove that trial counsel’s performance was constitutionally deficient. ? Id. The petitioner was originally charged with murder, and trial counsel’s testimony, which was uncontested, was that he presented various things for the State to consider, such as the petitioner’s state of intoxication, his claim that the gun fired accidentally, and other information, which resulted in the State agreeing reduce that charge to manslaughter first degree with a firearm. ? The essence of the petitioner’s claim was that he should have received a further reduction of charges, such as to manslaughter second degree with a firearm, however, he failed to present any actual evidence as to what additional mitigating evidence should have been presented by trial counsel in order to obtain that result. ? As such, the petitioner has failed to meet his burden of showing that trial counsel’s performance during plea negotiations was constitutionally deficient, and his claim as to paragraph 6j must be denied. ? Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.
The petitioner’s final claim is paragraph 6k, which claims that trial counsel was ineffective for failing to present mitigating evidence on the petitioner’s behalf at his sentencing. ? At sentencing, several members of the victim’s family addressed the court, a full pre-sentence investigation had been prepared, and the State’s Attorney presented argument to the court before recommending that the court impose the full twenty-five-year maximum called for by the plea agreement. ? Following that, the totality of the ?argument? put forth by trial counsel on behalf of the petitioner was:
?Your honor, I agree with everything that everybody said so far, and I don’t think there is anything left to say from my part. ? So, I’m going to ask [the petitioner] if he’d like to speak to??
(Exhibit D, Transcript of State v. Douglas Davis, August 3, 2005, pp. 9, ln. 15?20.) ? So it is perfectly clear, literally, other than what is quoted above, trial counsel said nothing on behalf of the petitioner in an attempt to mitigate his sentence. ? When questioned by this court as to the reason he said nothing on the petitioner’s behalf at sentencing, trial counsel’s response was:
?The circumstance was that at the sentencing, there was a large crowd of people, most of whom were related to the victim?his father, brother, sisters, so on and so forth. ? It was one of those very emotion packed hearings where, under the circumstances, and due to the fact that there was a death, you know, the emotions were running high. ? The judge was clearly effected by that fact and sympathetic to the family and sympathetic to the victim. ? He was fully aware of what the defendant’s record was and his background was through the presentence report. ? None of the facts as either presented by the victim’s family or the state were in dispute. ? And, so, at that point, the only thing I could have said would have been perfunctory and, under the circumstances probably would have elicited more of a negative response from the court than a positive one and, because he was familiar with anything that I could have said, I thought it was better not to say anything under the circumstances and simply let the court make its decision based on what it knew, which was all that I knew. ? So there was nothing I had to add to what the court already knew to, uh, that would have effected the ultimate decision.?
None of the factors cited by trial counsel?the large crowd, the emotional family members, the apparent sympathy from the court?should have come as any surprise to an attorney who, by his own testimony, had twenty years of experience handling serious felony (Part A) cases at the time he was representing the petitioner, and the court finds them to be wholly without merit. ? Simply put, every defense counsel and defendant that have ever stood before the court for a case resulting in serious injury or death could likely claim the same feeling of standing alone on an island within the courtroom with few, if any, friends in the room. ? That, however, provides no excuse for failing to advocate at all on behalf of your client.
In this court’s opinion, trial counsel’s conduct during the sentencing hearing in this matter is a poster-child example of what constitutes ineffective assistance of counsel. ?Strickland v. Washington, supra, 466 U.S. 685?88. ? Clearly, there can be times where refraining from saying some things at a contested sentencing hearing would be considered a sound strategic decision by defense counsel. ?Id. 681. ? To say absolutely nothing on behalf of your client, however, where you have negotiated for, and advised your client to accept, the right to present mitigating evidence to the court at a contested sentencing hearing is wholly unreasonable and inexcusable for an attorney of any experience level, let alone one with two decades of experience. ?Id. ?The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel’s playing a role that is critical to the ability of the adversarial system to produce just results. ? An accused is entitled to be assisted by an attorney ? who plays the role necessary to ensure that the trial is fair.? ?Id. 686. ? Although the job of criminal defense counsel often very difficult, and may often presents circumstances where the client and facts of the case present limited positive resources for counsel to work with, defense counsel’s job as an advocate is to make some effort to advocate on behalf of the client. ?Id.
Notwithstanding the above, however, in order to prevail on a claim of ineffective assistance of counsel, the petitioner must also satisfy the prejudice prong, the 2 prongs of the Strickland test. ?Hall v. Commissioner of Correction, supra, 124 Conn.App. 783. ? Therefore, this having been a contested sentencing hearing, the petitioner would need to show that the result of the proceeding is unreliable?that ?there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.? ?Strickland v. Washington, supra, 466 U.S. 694. ? In other words, the petitioner would need to show that he would have obtained a sentence of less than twenty-five years, but for his counsel’s performance. ? Id. Based on the defendant’s lengthy prior criminal history, the facts of the present case, the fact that the charge against the petitioner had already been reduced from murder to manslaughter, and the fact that there was no specific evidence presented before this court as to what mitigation evidence trial counsel should have presented at sentencing and, more importantly, how such evidence would have changed the outcome of the sentencing, the petitioner has failed to meet his burden of proving that he was prejudiced by trial counsel’s constitutionally deficient performance. ?Id. Therefore, the petitioner’s claim as to paragraph 6k is also denied.
III.?Conclusion
Based on the foregoing, the petition for writ of habeas corpus is DENIED as to all counts and claims.
Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within 30 days.
Hon. John M. Newson
FOOTNOTES
FN1.?Tanqueray gin..??FN1.?Tanqueray gin.
FN2.?The petitioner did have a second file pending under CR04?0035408, but that matter was ?nolled? upon the conclusion of the sentencing hearing and is not relevant to this proceeding..??FN2.?The petitioner did have a second file pending under CR04?0035408, but that matter was ?nolled? upon the conclusion of the sentencing hearing and is not relevant to this proceeding.
FN3.?Amended Petition, paragraphs 6a and 6b..??FN3.?Amended Petition, paragraphs 6a and 6b.
FN4.?The petitioner plead to Manslaughter First Degree with a Firearm, General Statutes ??53a?55a, a class B felony carrying a 20?year maximum exposure, 5 years of which were non-suspendable, and Possession of a Pistol without a Permit, General Statutes ??29?35, which carried a minimum 1?year to a maximum 5?year prison sentence, making his maximum exposure, when run consecutively, 25 years in prison, with 6 of those years being non-suspendable, whereas if he had been convicted of Manslaughter Second Degree with a Firearm, General Statutes ??53a?56a, a class C felony carrying a 10?year maximum exposure, 1 year of which was non-suspendable, and the Pistol without a Permit charge, his maximum exposure, if run consecutively, would then have been reduced to 15 years, 2 years of which would have been non-suspendable..??FN4.?The petitioner plead to Manslaughter First Degree with a Firearm, General Statutes ??53a?55a, a class B felony carrying a 20?year maximum exposure, 5 years of which were non-suspendable, and Possession of a Pistol without a Permit, General Statutes ??29?35, which carried a minimum 1?year to a maximum 5?year prison sentence, making his maximum exposure, when run consecutively, 25 years in prison, with 6 of those years being non-suspendable, whereas if he had been convicted of Manslaughter Second Degree with a Firearm, General Statutes ??53a?56a, a class C felony carrying a 10?year maximum exposure, 1 year of which was non-suspendable, and the Pistol without a Permit charge, his maximum exposure, if run consecutively, would then have been reduced to 15 years, 2 years of which would have been non-suspendable.
FN5.?Additionally, it is not even clear that the State’s Attorney disputed the claims that the petitioner was highly intoxicated or that the weapon may have discharged accidentally, since the State’s Attorney actually included these facts during his summary of the evidence during the petitioner’s plea canvass. ?(Respondent’s Exhibit C, Transcript of State v. Douglas Davis, June 8, 2005, pp. 6, lines 20?22 and pp. 7, lines 3?4.).??FN5.?Additionally, it is not even clear that the State’s Attorney disputed the claims that the petitioner was highly intoxicated or that the weapon may have discharged accidentally, since the State’s Attorney actually included these facts during his summary of the evidence during the petitioner’s plea canvass. ?(Respondent’s Exhibit C, Transcript of State v. Douglas Davis, June 8, 2005, pp. 6, lines 20?22 and pp. 7, lines 3?4.)
FN6.?Amended Petition, paragraphs 6c, d, e, f, g, h, i-??, i-???, and l..??FN6.?Amended Petition, paragraphs 6c, d, e, f, g, h, i-??, i-???, and l.
FN7.?The petitioner admitted, and trial counsel confirmed, that he told trial counsel that he only had ?a drug case? during one of their initial meetings when trial counsel asked him about his prior criminal history. ? The petitioner actually had 8 prior criminal convictions dating back to 1996, including convictions for larceny second, larceny third, two convictions for sale of narcotics, criminal contempt and assault third, as well as two violations of probation, all of which resulted in prison sentences that ranged from a little as 10 days to a long as 4 years. ? (Respondent’s Exhibit B, Presentence Investigation Report, pp. 4.).??FN7.?The petitioner admitted, and trial counsel confirmed, that he told trial counsel that he only had ?a drug case? during one of their initial meetings when trial counsel asked him about his prior criminal history. ? The petitioner actually had 8 prior criminal convictions dating back to 1996, including convictions for larceny second, larceny third, two convictions for sale of narcotics, criminal contempt and assault third, as well as two violations of probation, all of which resulted in prison sentences that ranged from a little as 10 days to a long as 4 years. ? (Respondent’s Exhibit B, Presentence Investigation Report, pp. 4.)
FN8.?Court: ?I guess my other question is this: ?You mentioned sort of being surprised at the extent of your client’s criminal history when you got the presentence investigation. ? I guess the court’s question is how, in a case this serious, could the substance of his prior criminal history not have been part of his criminal background report, not have been part of the discussions?Atty. Hopkins: ?We never got to the extent ? First of all, I may have had a copy of his record. ? I probably did. ? I may not have really looked at it until the time of sentencing. ? Quite frankly, the reason being, it was not material at all under the circumstances, until the time of sentencing. ? It only could have helped him at sentencing, ahhh, it couldn’t have hurt him in other words. ? He had a cap of 25. ? In other words, it was not important for me to know what his record, I knew he had a record because he told me. ? Beyond that, there was, because of the facts of the case, there was never any serious consideration of having a trial. ? If it came to that, certainly, I would have been very familiar with it in order to defend him at trial, to decide whether he should testify and so on and so forth. ? His record up until the point of the sentencing hearing was not really material under these circumstances. ? There was no reason I had to be intimately familiar with it at that point..??FN8.?Court: ?I guess my other question is this: ?You mentioned sort of being surprised at the extent of your client’s criminal history when you got the presentence investigation. ? I guess the court’s question is how, in a case this serious, could the substance of his prior criminal history not have been part of his criminal background report, not have been part of the discussions?Atty. Hopkins: ?We never got to the extent ? First of all, I may have had a copy of his record. ? I probably did. ? I may not have really looked at it until the time of sentencing. ? Quite frankly, the reason being, it was not material at all under the circumstances, until the time of sentencing. ? It only could have helped him at sentencing, ahhh, it couldn’t have hurt him in other words. ? He had a cap of 25. ? In other words, it was not important for me to know what his record, I knew he had a record because he told me. ? Beyond that, there was, because of the facts of the case, there was never any serious consideration of having a trial. ? If it came to that, certainly, I would have been very familiar with it in order to defend him at trial, to decide whether he should testify and so on and so forth. ? His record up until the point of the sentencing hearing was not really material under these circumstances. ? There was no reason I had to be intimately familiar with it at that point.
FN9.?According to the presentence investigation report, the petitioner’s longest sentence until this matter had been 4 years, and his exposure on the plea agreement in this matter was a minimum of 20 years and a maximum of 25..??FN9.?According to the presentence investigation report, the petitioner’s longest sentence until this matter had been 4 years, and his exposure on the plea agreement in this matter was a minimum of 20 years and a maximum of 25.
FN10.?During the plea canvass, the exchange went as follows:Court: ??There’s a ceiling of twenty five years, which means if I wanted to give you more than twenty five years, you could take your plea back. ? There’s a floor of twenty years, which means it can’t go below twenty. ? Your lawyer has a right to argue. ? If I give you twenty, twenty one, twenty two, twenty three, twenty four or twenty five, you’re locked in and can’t take your plea back. ? Do you understand that, Sir.Mr. Davis: ?Yes.?.??FN10.?During the plea canvass, the exchange went as follows:Court: ??There’s a ceiling of twenty five years, which means if I wanted to give you more than twenty five years, you could take your plea back. ? There’s a floor of twenty years, which means it can’t go below twenty. ? Your lawyer has a right to argue. ? If I give you twenty, twenty one, twenty two, twenty three, twenty four or twenty five, you’re locked in and can’t take your plea back. ? Do you understand that, Sir.Mr. Davis: ?Yes.?
Newson, John M., J.