2009 Ct. Sup. 13484
No. CV08-4002226SConnecticut Superior Court Judicial District of Tolland at Rockville
May 12, 2009
DECISION
FUGER, J.
THE COURT: There’s an unfortunate tendency, although probably necessary, that has existed for many, many years in the criminal justice arena that’s necessitated by the press of cases.
In an ideal world every case in which a defendant is charged with a crime should go to trial before a jury, the conscience of the community, and have the case resolved. That, of course, given the realities of the criminal justice system, is an impossibility. There’s no way that the state could prosecute every single offense that comes up before it. There’s no way the court system could handle every case that comes up before it.
Consequently, the practice of entering into pretrial plea bargains has grown. Unfortunately, it takes on, at times, a marketplace type of mentality where prosecution and defense are bargaining over the sale of a product, so to speak.
Now, Mr. Hernandez is clearly a savvy criminal defendant. He has had exposure to the criminal justice system before. He is a fairly well-educated criminal defendant, in that he understands many of the nuances of case law, of sentencings, of pretrial credits, consecutive versus concurrent and, understandably, Mr. Hernandez, being charged with a number of charges, wanted to limit his exposure as much as possible.
It is clear from the letter that Mr. Fernandez wishes to be on the free side of the bars dealing with raising his son. I can appreciate that. I can see that many times the birth of a child will cause one who has had a checkered record in the past perhaps to understand that the world has changed and it’s now time to step up to the plate and do the responsibilities that you were handed rather than continue to be irresponsible, to use a light word.
Mr. Hernandez entered into this plea bargain originally intending . . CT Page 13485 . apparently originally intending to take the case to trial, as, of course, is his constitutional right to do. Given the number of charges pending against him, the sentencing in New Haven, the fact that he was now earning . . . well, now serving dead time — that is, not earning any pretrial credits for the case that’s in front of the Court today, Mr. Hernandez made what can be called a pragmatic decision to settle everything in order to, I’ll use the slang, cut his losses at this point and be able to get out into the community to hopefully get on a path where he will become a responsible citizen.
And it’s clear that the plea bargain, certainly from the documents that were presented to the Court, required Mr. Hernandez to plead to assault in the second degree, period. Although the original charges were assault in the second degree with a motor vehicle, it is clear that that charge was changed from assault in the second degree with a motor vehicle to assault in the second degree by way of a substitute information filed just before the plea of guilty was taken.
There are no defects in the guilty plea canvass. The only issue in this case revolves around whether Mr. Hernandez was properly advised by Attorney Smith as to what he was pleading to. It’s clear that the Court properly advised him.
So what this case boils down to, which became apparent quite early in the proceedings, is whose credibility . . . Who is entitled to the greater credibility in this matter: Attorney Smith, who clearly testified that he explained the difference between an assault in the second degree and assault in the second degree with a motor vehicle and made it clear to Mr. Hernandez that he was pleading guilty to assault in the second degree, and Mr. Hernandez, who said he did not believe that he was pleading to assault in the second degree?
It does not surprise me that if during the course of the representation both counsel, prosecutor and client, Mr. Hernandez, may have used shorthand of assault in the second degree to refer to the charge of assault in the second degree with a motor vehicle.
Based upon all of the evidence presented to me, however, I can only conclude that Mr. Hernandez was, in fact, aware that he was pleading to assault in the second degree and that Mr. Smith advised him he was pleading to assault in the second degree, not assault in the second degree with a motor vehicle.
It may be that Mr. Hernandez was under a mistaken belief that both assault two and assault two with a motor vehicle were eighty-five CT Page 13486 percent parole eligibility crimes.
If I look at his letter that he addressed to the judge, he speaks in terms of understanding that his parole eligibility would now be eighty-five percent versus fifty percent. It may be that he mistakenly believed that assault in the second degree with a motor vehicle constituted an eighty-five percent crime. That’s if we read it in a light most favorable to Mr. Hernandez.
If, in fact, he knew he was referring to assault in the second degree, it is clear as of that letter that he then understood assault in the second degree was an eighty-five percent crime.
I can’t see any deficient performance on the part of Attorney Smith. I can’t see any prejudice that has actually inured to Mr. Hernandez.
On July 16th, it does not appear that Mr. Hernandez believed that he would be pleading to offenses such that his parole eligibility date would be June of 2009 versus December of 2010.
Consequently, I’m going to have to deny the petition.
And Mr. Hernandez, I’m going to comment to you that while this is not a factor in denying or granting the petition, I’m going to remind you of that old adage that one should be careful of what you ask for because you might get it.
In all honesty, Mr. Hernandez, I suspect that if I were to have granted your petition, the end result to you would have been significantly more painful than the result that you have right now. If nothing else, you would have had to go back and face the charge of either assault in the second degree or assault in the second degree with a motor vehicle. All of the other charges that had been nolled would have been restored to the docket. You could well have ended up serving significantly more time in jail than you’re going to have to serve.
But I want to make it crystal clear to you, that is not a factor in denying your petition. If this Court believed that you merited relief, even if I didn’t think it was a very smart thing for you to do, I would have granted it.
In this case, I cannot see relief being merited by the evidence, so I have no choice but to deny the petition.
I do wish you luck. I hope that the statements you’ve made in your CT Page 13487 letter, your demeanor here in court today is reflective of an individual who, a little late in life, but still coming to the right conclusion of what’s most important to him, and when you do get out, whether it be December 10th or July of 2011, I hope . . . and I actually have some hope to think that you might mean it, that you are going to go in the right direction and become the type of citizen we’d like to have and the type of father your child needs.
So, with that in mind, I have to have the appeal papers served on you.
THE CLERK: Let the record reflect that the marshal has handed the petitioner and the petitioner’s counsel the appeal forms.
THE COURT: And I sincerely wish you the best of luck, Mr. Hernandez, in the future. I hope things work for you. CT Page 13488