Copas v. Warden

Landau, J.,

dissenting. I respectfully dissent from the decision of the majority and would affirm the decision of the habeas court.

As the majority correctly points out, whether the underlying historical facts found by the habeas court constitute “a violation of the petitioner’s rights under the sixth amendment ‘is a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case.’ Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). As such, that question requires plenary review . . . unfettered by the ‘clearly erroneous’ standard.” I agree with the majority that the petitioner’s counsel’s performance was deficient at the sentencing stage of the hearing. Counsel’s performance during the plea and negotiation stage of the petitioner’s trial, however, was also wholly defective and inadequate. The habeas *689court found as much, and its decision to vacate the petitioner’s entire conviction should be affirmed.

In order to prevail on a claim of ineffective assistance of counsel, the petitioner must demonstrate that the counsel’s performance was deficient and that this deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Williams v. Warden, 217 Conn. 419, 422, 586 A.2d 582 (1991). Thus, “[w]hen a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Strickland v. Washington, supra; Williams v. Warden, supra. “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Strickland v. Washington, supra, 688. “ ‘A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.’ . . . Id., 689.” Johnson v. Commissioner, 218 Conn. 403, 425, 589 A.2d 1214 (1991).

“The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant.” Strickland v. Washington, supra, 691. “Even the best criminal defense attorneys would not defend a particular client in the same way.” Id., 689. “[Strategic choices made after thorough investigation of [the] law and facts relevant to plausible options are virtually unchallengeable . . . .’’Id., 690-91. “[T]he [petitioner] must overcome the presumption that, under the circumstances, the challenged *690action ‘might be considered sound trial strategy.’ ” Id., 689. Furthermore, a court will not second guess the tactics and strategy chosen by trial counsel after reasonable investigation and research. See Strickland v. Washington, supra, 689; Aillon v. State, 597 F. Sup. 158, 164 (D. Conn. 1984).

I do not agree with the majority that the habeas court did not address the claims raised by the petitioner related to ineffective assistance of counsel at the plea stage. When the habeas court concluded that it would not address the other claims of ineffective assistance of counsel, it did so because it was apparent to that court that the result would be the same. That is, the petitioner’s entire conviction would be vacated. The record is replete with instances in which the habeas court found that the petitioner’s counsel was woefully unprepared and inadequate to represent his client effectively during the plea stage. This is not a simple problem of the trial counsel’s, “after reasonable investigation and research,” deciding what he thought was the most prudent course of action to represent his client effectively. Indeed, as the habeas court found, “[although he had filed a notice to the state respecting a defense based upon mental disease or defect, Attorney Gruenbaum was unable to define ‘extreme emotional disturbance.’ He was unable to set forth the elements of the crime of murder .... It became apparent that trial counsel, at best, was confused about presenting an affirmative defense based upon mental disease or defect.”

A similar issue was addressed in Rinehart v. Brewer, 561 F.2d 126 (8th Cir. 1977). In Rinehart, the petitioner’s habeas relief, based on, inter alia, a claim of ineffective assistance of counsel, was affirmed1 after *691the court noted that “[tjhere is uncontroverted evidence in the record which suggests that [the defendant] was not informed of the elements of the crime of second-degree murder. Since his own defense counsel were confused as to the distinctions among first and second-degree murder, and manslaughter, it is inconceivable to conclude that [the defendant] would have known . . . that a guilty plea would be an admission of the existence of the intent to kill.” Id., 130-31. The court continued: “One of the defense lawyers did not discuss the law of manslaughter with [the defendant] . . . and himself was unfamiliar with its elements. ... It is unlikely that [the defendant] would have understood manslaughter to be the appropriate result when the record reveals his own lawyers were confused as to the difference between manslaughter and murder.” Id., 131.

As in Rinehart, defending a person on trial for murder and not knowing the elements of the crime fall far below the level of “reasonableness under prevailing professional norms.” Strickland v. Washington, supra, 688. Here, counsel’s actions were not based on informed strategic choices made by the petitioner. We can hardly expect a defendant to make informed choices when it is clear that his attorney has no idea which choices to present to his client. It is apparent that there was no investigation of the law by defense counsel in this case. Thus, the petitioner clearly demonstrated that counsel’s performance was deficient.

*692The habeas court found that the petitioner was prejudiced by his counsel’s deficient performance at the plea stage. First, the court noted that Gruenbaum never argued the petitioner’s motion for discovery or his motion to suppress. “According to trial counsel, he never requested an independent psychiatric examination because he did not feel that any psychiatrically oriented defenses applied.” In some instances, this decision might be seen as strategic. Gruenbaum was unable, however, to define extreme emotional disturbance and was confused about “presenting an affirmative defense based upon mental disease or defect,” as well as unable to appreciate the “differences between ‘insanity,’ ‘extreme emotional disturbance’ and ‘diminished capacity.’ ” Such confusion conclusively demonstrates that the petitioner did not receive effective assistance when determining whether to mount a psychiatric defense. Second, the habeas court found that there was absolutely no plea bargain. The defendant pleaded guilty, the state would argue for the maximum sentence, and the defense “was free to argue for any lesser sentence.” Under other circumstances, this could be also interpreted as a trial strategy. This decision, however, was born of a lack of reasonably expected investigation and research into the law, the facts, and the procedures surrounding a crime of this nature.

The habeas court concluded that the defendant was prejudiced by the deficient performance of defense counsel at both the plea stage and sentencing.2 Therefore, I would affirm the judgment of the habeas court vacating the judgment of conviction.

In Rinehart, the Eighth Circuit determined that the defendant’s plea was involuntarily made because the court, as well as defense counsel, failed *691to explain adequately the elements of the crime to the defendant. Rinehart v. Brewer, 561 F.2d 126, 130 (8th Cir. 1977).

The court in the present case did canvass the defendant and explained the elements of the crime of murder. The court, however, also asked the defendant if his counsel had adequately explained the elements of the crime to him. While the defendant said that his counsel had, this admission directly conflicts with the habeas courts’ finding that petitioner’s counsel was unable to set forth the elements of murder. A canvass of the defendant, while absolutely essential, cannot replace the need for effective assistance of counsel.

Even if we assume that the habeas court did not explicitly make such a finding, there is no reason to remand this case for a hearing on the petitioner’s additional claims. “Conclusions of fact may be drawn on appeal . . . where ‘the subordinate facts found by the trial court make such a conclusion inevitable as a matter of law.’ ” State v. Reagan, 209 Conn. 1, 8-9, 546 A.2d 839 (1988).