In Re: Bradshaw, No. 1565-98 CnCv (Katz, J., Feb. 17, 2004)

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STATE OF VERMONT                                     SUPERIOR COURT
Chittenden County, ss.:                          Docket No.1565-98 CnCv



Post-Conviction Relief
Petition of

SYDNEY I. BRADSHAW



                        FINDINGS OF FACT,
                       CONCLUSIONS OF LAW,
                      AND NOTICE OF DECISION




       This matter was tried to the court on January 16, 2004. The court sat
at the United States District Court, Burlington, in order to receive a live
video feed of Petitioner Bradshaw. The court and prosecutor were able to
hear Mr. Bradshaw at all times; he was able to hear whatever was said in
court. On the basis of the evidence presented, the following decision is
announced.

                           FINDINGS OF FACT
1.       Petitioner Bradshaw was charged with Aggravated Assault–First
Degree, a felony, in Vermont District Court. The officer’s affidavit
supporting a finding of probable cause states that Bradshaw caused stab
wounds on the woman with whom he had been living. She was taken to the
hospital where she was treated for numerous lacerations on her neck and
hands. Her initial statement indicates that although she grabbed the knife
first, Bradshaw got it away from her during their fight. These statements
along with others taken directly at the scene strongly implicate Bradshaw in
the crime.

2.       Bradshaw was in pre-trial confinement from the May 1997 incident
through his February 1998 change of plea. During that time, at least one
attorney, Robert Andres, was discharged, apparently at Bradshaw’s request.
Attorney Karen Shingler was then appointed. A young associate in her
office, Peter Shubart, initially began to work on the matter.

3.       At the January 16, 2004 proceeding, Bradshaw indicated that he
had defended himself before a jury on a rape charge only a few years before
the charge at issue here and had won an acquittal. Bradshaw also made
clear his belief that the complaining witness against him in this case would
recant. He states that her wounds, attributed to his using a knife, were in
fact self-inflicted scratches, which are explained by the fact that she is left-
handed. Bradshaw’s statements and demeanor throughout this case
demonstrate that he follows his own compass, makes his own decisions,
and is very much the man in charge.

4.      Bradshaw’s belief about the complainant’s recantation was
corroborated by the tape recording he submitted as evidence. It was made
at a hearing while Bradshaw was in pre-trial confinement. He was seeking
to lower his bail and trying to prove that the evidence against him was not
as great as the State or its affidavit accompanying the information might
suggest. His attorney, Schubart, called the asserted victim, Dina Germain,
as a witness. During her testimony, Germain:
C      Said she would not be afraid were Bradshaw released;
C      recanted from her prior statement the he had slashed her with a
       knife;
C      stated that Bradshaw had not waived the knife at her;
C      admitted a prior statement to prosecutors about knife wounds to her
       neck;
C      stated, instead, that her own finger nails had caused the injuries to
       her own neck;
C      admitted pounding on the wall, from fear, to seek aid from the
       police.

5.        While this recanting, in open court, was not particularly credible, it
was clearly enough to raise doubts about the reliability of her testimony at
trial or an attempt to prosecute the case without her cooperation. At
Bradshaw’s later change-of-plea proceeding, Judge Burgess explicitly
reviewed the issue. Both Bradshaw and Attorney Shingler replied to the
court that they believed the state had at least a prima facie case against
Bradshaw. When pressed by Judge Burgess, Bradshaw expressed some
hesitancy in his answers. As a result, the judge explicitly told him that he
could not change his mind following the plea of “no contest.” Bradshaw’s
response was merely, “I hear what you’re saying,” to which Judge Burgess
forced him to respond further either yes or no. At this point, Bradshaw
assented to understanding.
6.       Bradshaw’s responses to Judge Burgess’s inquiries were in general
dissembling. At several points, he responded, “At this time I do.” Such as
when he was asked to acknowledge that he was giving up constitutional
rights of confrontation, as well as the effect of entering a plea of no contest.
At other points in the proceeding, usually when pressed, Bradshaw
demonstrated capacity for a simple “yes.”

7.       While the victim’s viability as a witness did not have a substantive
effect on the charges pending, we find that this recantation affected
Bradshaw’s attitude toward his situation and inform his later choices as
well as strategy.

8.       As a trial date neared, Shingler, who is very experienced in
criminal defense, took over Bradshaw’s defense from Shubart. She and
Bradshaw conferred on his prospects for trial. Above all else, Bradshaw
demonstrated that he was resolved to get out of jail as quickly as possible.
While it is normal, and anything but unusual, for those incarcerated to seek
their freedom, we are persuaded that at the time Bradshaw and Shingler
discussed the possible trial, and the issue of whether to negotiate a plea
bargain, his single-minded determination was to get out of jail by any
immediate means.

9.       Due in part to the complaining witness’s erratic performance at the
pre-trial hearing, the prosecution was apparently willing to discuss a plea
bargain. In February 1998, the parties reached a plea bargain, and
Bradshaw pled no contest to the original charge of Aggravated Domestic
Assault. He was sentenced four to eight years, all suspended but for the
time he had already served. In other words, although he had pled to a
serious, violent felony charge, he had achieved his paramount goal of
immediate release from jail. Even back at the time of his change-of-plea,
Shingler told Judge Burgess that Bradshaw was a “very active participant in
his plea negotiations.” We are persuaded that he was.

10.     Bradshaw now asserts that he was not told that he was pleading to a
felony. We reject that assertion. He knew the crime to which he was
pleading guilty. At the tape recorded hearing, during which the
complaining witness recanted her prior accusations against him,
Bradshaw’s attorney, Peter Shubart, clearly stated that the charge was “First
Degree Aggravated Assault.” Judge Burgess, at the change-of-plea, at least
twice enunciated “aggravated assault” and clearly reviewed the agreed
sentence—eight months to four years. Only a fool might consider such a
charge less than serious and less than a felony. Mr. Bradshaw is no such
fool.

11.     Sydney Bradshaw is a very intelligent, willful and experienced
member of the criminal justice community. He served a number of years in
New York as a court reporter. In Vermont he has been a Corrections
Officer. He is personally familiar with the usual features of probation
having served it for sentences in the 70s, 80s, and 90s. The federal
detention warrant notes several New York convictions for the following:
(1) Criminal Trespass (misdemeanor), Convicted after trial, 3 years
Probation; (2) Attempted Burglary (felony), Entered a Plea of Guilty, 5
years Probation; (3) Criminal Possession of a Weapon (felony), Entered a
Plea of Guilty, Probation 5 years; and (4) Harassment (violation), Entered a
Plea of Guilty, Conditional Discharge. If nothing else, this record
demonstrates that Bradshaw was intimately familiar with the differences
and distinctions between misdemeanor and felony.

12.    Directly following his change-of-plea and resulting conviction,
Bradshaw was duly released to begin his period of probation. He went
downstairs in the courthouse to the probation office. There, he met with
the assigned probation officer, was shown the standard conditions of
probation, and began an effort to back out of the plea bargain and resulting
conviction. He was, of course, out of jail at this time, but Bradshaw now
testifies that, within twenty minutes of gaining his freedom, he was “ready
to return to jail” because of dissatisfaction with those standard conditions.
We do not believe he was anxious to so return, although he did, within
twenty minutes, refuse to sign his conditions of probation, thereby
commencing his attack on the conviction.

13.      Bradshaw asserts that this initial attempt to withdraw his plea was
due to the fact that Shingler did not advise him of the standard conditions of
probation. This omission does not appear seriously disputed. Bradshaw
makes much of one such standard condition, that he must live in a place
approved by the probation officer, but we are not persuaded that this or any
of the standard conditions of probation would have played any role in
Bradshaw’s thinking about negotiating a plea bargain, or accepting one that
was offered. None of the standard conditions are particularly onerous;
there is no reason to believe he could not live with any of them. Even so, at
a withdraw hearing held on April 21, 2998, the state conceded the issue and
agreed that the standard conditions did not apply to Bradshaw.
Nevertheless, Bradshaw continues to raise this issue in support of his
claims.

14.     Bradshaw also claims that Shingler told him that he would be able
to change his mind, after pleading guilty, so long as he did it within ten
days. He is also sure of a 30 day deadline for filing such a change of mind.
Why the law would allow a person only ten days to change his mind, but
yet an additional twenty merely to file a piece of paper stating that fact of
course makes no sense. Yet, Bradshaw is unbending in his testimony that
Shingler gave such advice. We consider that testimony rubbish. There are
no such provisions in Vermont’s Rules of Criminal Procedure. As a former
prosecutor and more recently active criminal defense attorney, with perhaps
fifteen years experience, there is no way Shingler would have advised
Bradshaw of such an opportunity.

15.       We are persuaded by Shingler’s testimony that Bradshaw’s
paramount interest was immediate freedom. He knew what he was doing,
at least in his own mind. Bradshaw was confident that, if he could only get
out of jail, he would get the conviction vacated. Whether it was through
recantations by the complaining witness, feigned ignorance about the nature
of the charge, the standard conditions of probation, or simply changing his
mind and withdrawing the plea (directly contrary to the Rule 11 advice
given by the judge just prior to the change-of-plea, to which he gave a
dissembling reply), Bradshaw was confident he could gain both immediate
freedom and beat the charge thereafter. That is why he accepted the plea
bargain, and that is why he began almost immediately thereafter to
undermine it.

16.    It is for these reasons that we also find Shingler’s failure to warn
Bradshaw about deportation would have made no difference at all.
Bradshaw had his plan, was determined to follow it, and did.

17.      Bradshaw was born in Guyana, South America, and came to the
United States at the age of 11. His mother was later naturalized, but he
never was, apparently in part because of a misbelief that as a minor his
citizenship would follow his mother’s. Although he speaks very well and is
quite articulate, Bradshaw has a unmistakable foreign accent. He
frequently uses British forms of speech.
18.      At the time she represented Bradshaw, Attorney Shingler knew that
aliens convicted of felonies, particularly those involving assault, were
subject to deportation. It would be obvious to anyone that deportation
would be of critical interest to one in Bradshaw’s position. He had lived in
America for well over thirty years, having left his native land at age 11.
What life Bradshaw has built for himself has been here. In discussing the
possible plea bargain, Shingler did not advise Bradshaw of deportation
risks.

19.      The two never explicitly discussed Bradshaw’s citizenship. While
Shingler knew that he was “from New York,” she agrees that his speech is
not that of a New York native. They did discuss the question of his
returning to New York after his release.

20.       Had Bradshaw not accepted the plea bargain, he would have faced
trial. If convicted of knifing his girlfriend, he would have, in consideration
of his not insignificant record, faced a longer prison sentence than that
provided in the plea bargain. Most importantly, there would have been no
immediate release. That is why he accepted the plea offer. He would have
done so with or without knowledge of the risk of deportation.



                         CONCLUSIONS OF LAW



21.     Bradshaw has presented roughly four factual areas on which he
premises his claim for relief. The first two of these may be disposed of
with a brief discussion of the record and our findings. Bradshaw claims
that he was told that he could change his plea after entering it. He also
claims that he was not aware he was pleading guilty to a felony but was
convinced it was only a misdemeanor. Bradshaw has not credibly
established that he was unaware of the pending felony to which he was
pleading. Given his knowledge of the criminal court system, the
seriousness of the penalties facing him, the clear language of Judge
Burgess, and the very name of the charge, it is clear that he was not under
any mistaken notions as to the crime to which he plead.
22.      Likewise, we find Bradshaw’s claim, that he was told he could
revoke his plea after entering it, incredible. Bradshaw was told in no
uncertain terms by Judge Burgess that his plea could not be revoked, and he
acknowledged this warning. Combined with Shingler’s testimony that she
did not tell him at any time that it could be revoked, there was simply no
basis for him to reasonably believe otherwise.

23.       Throughout this proceeding, indeed from nearly the moment he
entered his plea, Bradshaw has attacked his agreement from every angle
possible. Despite clear and uncontested evidence to the contrary, he has
maintained the foregoing claims and has mustered every reason possible to
withdraw from his plea bargain. The permissive reading of this evidence
reflects a concerted effort on Bradshaw’s part to beat his conviction by
pleading guilty to gain his freedom and then using any means available to
undermine his conviction. Although Judge Burgess could not have more
clearly educated Bradshaw as to the foolishness of his scheme, even today,
five years later, Bradshaw still declaims that “20 minutes after I was able to
read the terms of the plea agreement, I called Ms. Shingler’s office
immediately and told her to withdraw the plea.” (Trans. PCR Hearing, Jan.
16, 2004, at 84). The point is not that his machinations were well-advised;
it’s that they were Bradshaw’s.

24.     Bradshaw’s remaining two arguments for relief come under the
claim of ineffective assistance of counsel. The standard of review for such
a claim is two pronged. Strickland v. Washington, 

, 687–88
(1984); In re Pernica, 

, 182–83 (1986). The petitioner must first
demonstrate that counsel’s performance dipped below an objective standard
of professional norms, and second that this performance prejudiced his
defense. In re Hemingway, 

, 571 (1998). On both prongs,
petitioner bears a heavy burden of persuasion. In re Dunbar, 

,
211–12 (1994).

25.      Bradshaw’s claim of unawareness about the standard terms of
probation does appear to have factual support. Despite his experience in
the criminal justice system and his prior experiences with probation, the
evidence does tend to show that Shingler and Shubart did not discuss these
conditions with Bradshaw before his plea agreement. Bradshaw, however,
is not clear as to why any of the standard probation terms are disagreeable
to him. His umbrage appears to stem from the fact that these terms were
not discussed prior to the agreement. But mere technical displeasure is not
enough. Aside from any question of the attorney’s duty to inform,
Bradshaw must show that the standard conditions prejudiced him within the
context of the plea bargain. In re Fisher, 

, 460–62 (1991)

26.      In this case, Bradshaw has not demonstrated that any particular part
of the standard conditions would have affected his plea agreement as
otherwise crafted. Moreover, the state explicitly waived them. It is
therefore impossible to conclude that the attorney’s or the court’s failure to
discuss them had any substantive effect on Bradshaw’s defense because he
never became subject to them. In re 

–62. Even so,
we are not persuaded that these terms were a complete surprise to
Bradshaw. Bradshaw was very involved in negotiating his plea agreement
and “wanted to get out of jail very badly.” (Trans. PCR Hearing, Jan. 16,
2004, at 49). Yet, he now claims to have been prepared to return to jail
within the hour based solely on standard probation conditions. He has
continued to use these conditions as a basis for attacking his plea even after
he was told they do not apply. Rather than evincing displeasure, we find
that Bradshaw’s insistence on discussing these terms reflects his continuing
adherence to the stratagem, of which the plea agreement was a mere
evanescent component.
27.     Petitioner’s final claim is that his attorney’s failure to notify him
about the deportation consequences of his plea. As we have previously
discussed, deportation as the result of a plea agreement is a serious harm
that counsel has a duty to inform a defendant about when counsel has
reason to believe that the defendant is an alien. In re Muazhem Al Sayaf,
S1087-00 CnC (Katz, J. Mar. 21, 2003).

28.       Under the same reasoning that we used in Al Sayaf, we conclude
that Bradshaw will suffer a serious harm from deportation and that Shingler
had a duty to inform him of this consequence. Despite Bradshaw’s long-
term residence in the United States, he still carries a strong foreign accent,
and his arrest forms clearly state a South American place of birth. Shingler
was well aware at the time of the threat of deportation to permanent
residents who pled guilty to felonies. Certainly Bradshaw had a right to be
informed of this possibility given the gravity of the consequences, the
obviousness of his status, and the ease with which Shingler could have
discussed it. Together these triggered a duty in Shingler at least to
investigate Bradshaw’s citizenship status beyond the mere discussions of
“home” that she had with him about New York. We note that the Vermont
Supreme Court has discussed this issue in dicta since Al Sayaf and has
alluded to its collateral nature. In re Calderon, 

, at ¶¶ 14, 18
(Johnson, J. dissenting) (referring to deportation as a collateral matter). We
are still persuaded in the reasoning of Al Sayaf and that this reasoning
would most likely be adopted by the Court should it face the issue directly.
See People v. Pozo, 

, 529 (Colo. 1987) (stating that attorney
has a duty to inform non-citizen client of deportation consequences).

29.      We therefore conclude that Attorney Shingler’s failure even to
inquire about Bradshaw’s citizenship status violates the objective standards
of professional norms and thereby satisfies his burden under the first prong
of a Strickland analysis. 

–88. Once petitioner
proves that his attorney’s actions violated professional standards, however,
he must then prove that this violation had a prejudicial effect on his defense
such that there is a reasonable probability that he would have gone to trial
rather than pleading guilty. 

–61. The standard for
this prong is characterized as an objective analysis of a subjective question:

       In Hill v. Lockhart, 

(1985), the United States
       Supreme Court applied Strickland “to challenges to guilty
       pleas based on ineffective assistance of counsel.” 

       The prejudice prong of Strickland was modified in this
       respect: “[T]he defendant 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.” 

“Although this modification focuses the inquiry on a
       subjective question, the answer to that question must be
       reached through an objective analysis.” Hooper v. Garraghty,
       

, 475 (4th Cir.), cert. denied, 

       (1988). Contrary to petitioner’s assertion, the circumstances
       confronting him at the time he decided to plead guilty,
       including the evidence against him and the likelihood of
       success at trial, are relevant to the inquiry. 

; 

.

–61. In the present case, Shingler’s failure did not
have such an effect. First, Bradshaw’s overriding goal throughout his plea
bargaining negotiations was to get out of jail immediately. All the evidence
persuades us that the threat of deportation would not have altered his plans.
Rather, it would have been just another ground for attempting to end run his
conviction, as indeed it has become.

30.      Each action Bradshaw took during the plea negotiation, the change-
of-plea, and directly after demonstrates an overarching scheme to first get
out of jail and then undo his plea. Despite the weakness of the state’s
complaining witness, Bradshaw was still facing a very real and serious
chance of conviction. The objective medical evidence, initial witness
statements, and the testimony of roommates, neighbors, and police were
strong enough to give him good reason to accept a plea agreement.
Moreover, Bradshaw was no stranger to the criminal justice system and had
successfully defended himself previously by taking a charge to trial. We
are persuaded that he would have taken this route if he felt there was a
realistic possibility of beating the charge.

31.     Instead, Bradshaw committed himself to accepting the plea
agreement and subsequently escaping the conviction through motions to
withdraw it. Whether a calculated gamble that the state’s attorney would
not reassert charges with weak victim testimony or, more likely, that he
could more effectively influence the victim’s recantation, Bradshaw’s plan
was to immediately annul his no contest plea. What the evidence and
Bradshaw’s actions show is a man very involved in his plea agreement,
committed to a course of action, and willing to begrudge any consequences
under the belief that they would be removed once the conviction was
rescinded. We therefore conclude that any information about the risk of
deportation would not have altered his choice of action.
32.      Beyond the evidence of Bradshaw’s attitude and decision-making
process, there is very little objective information to believe that the threat of
deportation would in any case have had any effect on Bradshaw’s situation.
Bradshaw is being held and deported as a result changes in federal law and
INS policy, the biggest changes coming from the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208,
110 Stat. 3009 (codified as amended in scattered sections of 8 U.S.C.).
This Act was passed as part of a slew of anti-immigration laws designed to
curb illegal immigration and its side-effects. Bruce Robert Marley,
Comment, Exiling the New Felons: The Consequences of the Retroactive
Application of Aggravated Felony Convictions to Lawful Permanent
Residents, 35 San Diego L. Rev. 855, 857 (1998). While strengthening the
power and authority of the INS to act against immigrants, the Act also
began a government crackdown on non-citizens in the U.S. with any
criminal background. 

8 U.S.C. § 1101(a)(43) (2000), the
INS has broad authority to seize and deport permanent residents who
commit any number of innocuous crimes, at any time. Marley, 35 San
Diego L. Rev. at 870 (noting that “aggravated felony” through the INS’s
interpretation can include shoplifting, turnstile-jumping, and simple drug
possession). Furthermore, convictions and imprisonment are interpreted
loosely with the triggering punishment residing in the “nature of the
predicate offense” rather than sentencing. 

The effects of this
law have already been felt by at least one Vermont defendant who was
subject to deportation after pleading guilty to two misdemeanors, which the
INS reinterpreted as aggravated felonies. In re Calderon, 

, at ¶
4.

33.     In Bradshaw’s situation, he already had two felony convictions that
under 8 U.S.C. § 1101(a)(43)(F) would have qualified him for deportation.
As previous INS actions have demonstrated, such a conviction made
Bradshaw a sitting target for deportation. See generally Marley, 35 San
Diego L. Rev. 855 (detailing situations where permanent residents came to
the INS’s attention by visiting another country, attending a naturalization
interview, or further involvement in the criminal justice system). With the
INS’s liberal interpretation, Bradshaw might have also faced the same
threat with a plea agreement that labeled the offense a misdemeanor. See
Calderon, 

. It is unclear exactly how Bradshaw could have
avoided INS action regardless of the information given him or his
disposition to those choices. Even a choice for trial and acquittal, despite
strong evidence otherwise, would have done nothing to erase his prior
convictions. Thus, we are unpersuaded that information about deportation
would have had any effect on Bradshaw’s case. When coupled with his
desire to seek immediate freedom as part of his overall scheme, we are
persuaded that such information would only have been ignored or distorted
by Bradshaw for later use. Therefore, we conclude that Bradshaw has not
established the second prong of Strickland and was not prejudiced by his
attorney’s failure to counsel on deportation consequences.



       Based on the foregoing, petitioner’s request for post conviction relief
is dismissed.



       Dated at Burlington, Vermont__________________, 2004 .




                                          ___________________________
_____

        Judge