• Connecticut Appellate Court
  • AC 34851
  • Apr 15 2014 (Date Decided)
  • Per Curiam

To establish prejudice in a habeas claim arising from counsel’s advice during the plea process, the petitioner must demonstrate, as stated in the 1985 U.S. Supreme Court case of Hill v. Lockhart, “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.” Represented by Attorney Robert Cary and facing up to 40 years imprisonment plus four and a half years for a probation violation, Carl Delvecchio accepted the court’s offer and entered Alford pleas to two counts of robbery in the first degree. He admitted the probation violation. Before sentencing, Cary withdrew. Appointed counsel, Gregg Wagman, moved to vacate the pleas. The court denied the motion and entered the agreed upon sentence of 10 years imprisonment followed by five years of special parole. Probation was terminated. Delvecchio appealed. His appellate counsel withdrew on the ground that the appeal was frivolous. The Appellate Court disposed of the appeal on its own motion. Delvecchio filed a second amended petition for a writ of habeas corpus alleging that Cary and Wagman rendered ineffective assistance in several ways. Following trial, the habeas court rejected the claims but granted certification to appeal. Delvecchio appealed claiming that the habeas court improperly determined that he was provided with effective assistance of counsel. The Appellate Court affirmed the judgment. The habeas court reasonably concluded that the petitioner’s decision to plead guilty arose primarily from his understanding that the testimony of his codefendant would result in his conviction if he went to trial. When coupled with his awareness that the trial court indicated he should expect to receive the maximum sentence if convicted following trial, the habeas court properly found that it was not reasonably probable that the petitioner would have insisted on going to trial. Because none of counsels’ alleged errors would have affected the reason for the petitioner’s decision to plead guilty, namely, that his codefendant would testify against him if he went to trial, the petitioner failed to demonstrate that, absent counsels’ alleged errors, there is a reasonable probability he would not have pleaded guilty and insisted on going to trial.

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