Anderson v. Comm'r of Corr.

205 Conn.App. 173

256 A.3d 174

Francis ANDERSON

v.COMMISSIONER OF CORRECTION

AC 42032

Appellate Court of Connecticut.

Argued February 9, 2021

Officially released June 8, 2021

James P. Sexton, assigned counsel, with whom, on the brief, were Megan L. Wade and Meryl R. Gersz, assigned counsel, for the appellant (petitioner).

Nancy L. Chupak, senior assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Jaclyn Preville Delude, supervisory assistant state's attorney, for the appellee (respondent).

Alvord, Elgo and Cradle, Js.

CRADLE, J.

The petitioner, Francis Anderson, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court incorrectly concluded that his trial counsel did not provide ineffective assistance by failing to pursue a defense of lack of capacity due to mental disease or defect (lack of capacity). We affirm the judgment of the habeas court.¹

On March 3, 2011, the petitioner pleaded guilty to two counts of assault of a peace officer in violation of General Statutes (Rev. to 2009) § 53a-167c. The petitioner's conviction resulted from events that transpired on September 30, 2009, when the petitioner, while serving a prior sentence, assaulted two officers from the Department of Correction. The trial court, Hon. Terence A. Sullivan , judge trial referee, sentenced the petitioner to a total effective sentence of five years of incarceration, to be served consecutively to any previous sentence he already was serving.

On February 19, 2013, the petitioner filed an amended petition for a writ of habeas corpus.² In his amended petition, the petitioner claimed that his trial counsel, Douglas Ovian, provided ineffective assistance by failing to adequately investigate his case, failing to explain to him the strengths and weaknesses of his case and failing to meaningfully explain the plea offers made to him and the likely range of sentences that he faced.

On July 25, 2018, following a three day trial and the filing of posttrial briefs by the parties, the habeas court, Farley , J ., issued a memorandum of decision in which it concluded that the petitioner failed to prove that Ovian's representation of him was deficient or that he was prejudiced by this alleged deficiency. In so concluding, the habeas court began by noting that "[t]he petitioner's case, as presented at trial and in his posttrial brief, focuses specifically upon his attorney's failure to adequately explore and explain a potential defense of lack of capacity, as an alternative to his guilty pleas, and to otherwise provide an effective defense based on the petitioner's mental health issues." The court then set forth the following relevant facts. "[The petitioner] has a long history of violent behavior and mental illness. In the underlying case, [the petitioner] was charged with assaulting two correctional officers when they entered his cell immediately after having, in [the petitioner's] opinion, mistreated another inmate with mental illness. This was not the first such occasion. [The petitioner] has a long history of assaults against correctional officers and others. His psychological issues and behavioral problems date back to his childhood and he has been in and out of correctional facilities since his youth. The incident underlying the conviction that is the subject of this habeas petition occurred in September, 2009, at Northern Correctional Institution. [The petitioner] was charged with two counts of assault [of a peace officer] in violation of General Statutes (Rev. to 2009) § 53a-167c, class C felonies, as well as an infraction for failure to comply with fingerprinting [requirements] in violation of General Statutes § 29-17. The felony counts exposed him to up to twenty years of incarceration and any sentence was required by statute to run consecutively to the sentence he was serving at the time. Subsequently, accounting for his prior history, the state filed [a] part B [information] charging [the petitioner] as a persistent felony offender in violation of General Statutes § 53a-40 (g) and as a persistent serious felony offender in violation of General Statutes § 53a-40 (c). These additional charges increased [the petitioner's] exposure to up to forty years of incarceration. On March 3, 2011, after a jury had been selected, [the petitioner] pleaded guilty to the two assault counts under an open plea, the state having agreed to drop the part B counts in exchange for the guilty plea. Thus, at sentencing [the petitioner] faced a total exposure of twenty years. He was sentenced to five years to serve on each of the two counts, to run concurrently with each other and consecutive to the sentence he was then serving. ...

"Following [the petitioner's] arraignment on the original charges ... Ovian was assigned to represent him. At the time ... Ovian had over twenty years of experience with the Division of Public Defender Services and had served as a public defender in the Tolland judicial district for over three years. [The petitioner] made numerous appearances in court prior to trial. ... Ovian met with [the petitioner] on these occasions and had the opportunity to explore at length with him the underlying events and his criminal and psychological history. ... Ovian directed his staff to compile a record of [the petitioner's] mental health history and treatment and to prepare a summary of that history, as well as [the petitioner's] criminal history. Extensive records were obtained, dating back to a psychological evaluation performed by ... Donald Grayson in 2000, which in turn reviewed [the petitioner's] prior records. It is not clear, however, that ... Ovian had the entirety of [the petitioner's] mental health records, in particular a 1982 report from Riverview School prepared when [the petitioner] was twelve years old, records from a prior commitment to [what is now] Whiting Forensic [Hospital (Whiting)] in 2005, and some community treatment in 2007. The summary prepared for ... Ovian, however, does reference the 2005 admission to Whiting, as well as [the petitioner's] childhood history.

"Over the course of the pretrial proceedings in the case ... Ovian regularly discussed [the petitioner's] mental health issues with him and how those issues might relate to a defense strategy in the case. These discussions included a ‘colloquial’ discussion of a potential lack of capacity defense. By ‘colloquial’ ... Ovian means a discussion in layman's terms, as distinguished from a technical, legal discussion. The petitioner makes much of the fact that ... Ovian does not have written notes concerning the discussion of a lack of capacity defense with him. ... Ovian, however, freely acknowledged areas of his recollection that were unclear and deferred to [the petitioner's] recollection on occasion. He was very clear in recalling that he did address the subject of a potential lack of capacity defense with [the petitioner] and the court credits his testimony on that point despite [the petitioner's] contradictory testimony. It is [the petitioner's] testimony the court finds is not credible. According to [the petitioner] ... Ovian never discussed the following subjects with him: the facts of the case; the strengths and weaknesses of the case; the minimum and maximum penalties he faced; a plea offer from the state of eighteen months to serve; the option of a court trial rather than a jury trial; and a potential lack of capacity defense. [The petitioner] does acknowledge that he discussed his mental health issues with ... Ovian, but he maintains that ... Ovian ignored those issues. The court does not find [the petitioner's] testimony concerning how ... Ovian conducted the defense and the nature of his dealings with ... Ovian to be credible.

"Following his initial meetings with [the petitioner] and the review of his mental health history ... Ovian was of the view that a lack of capacity defense was not a viable option for [the petitioner]. The history reflected diagnoses of post-traumatic stress disorder [PTSD], personality disorder, borderline intellectual functioning and substance abuse. Despite the extensive mental health history, however, it was ... Ovian's view that the facts did not support a claim that [the petitioner] lacked the capacity either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law. In addition to his assessment that a lack of capacity defense was not viable ... Ovian also considered the pursuit of that defense as strategically unsound because it would potentially expose [the petitioner] to a period of confinement significantly longer than what could be negotiated in a plea agreement with the state. ... Ovian raised the subject of [the petitioner's] extensive mental health history with the state in plea negotiations. At one point ... Ovian obtained a plea offer from the state that would have resulted in an agreed upon sentence of eighteen months to serve. [The petitioner], however, rejected that offer.

"[Ovian] discussed the merits of a lack of capacity defense, in addition to the strategic disadvantages of pursuing that defense, with [the petitioner]. He also checked his own opinion of the merits of such a defense by obtaining an expert opinion on the issue. At the time of jury selection ... Ovian referred [the petitioner] to ... Kenneth Selig, a psychiatrist and an attorney, for evaluation. ... Ovian testified that, among other things, he discussed the viability of a lack of capacity defense with ... Selig and, based on that discussion, reaffirmed his view that it was not a viable defense for [the petitioner]. ... Ovian relayed that opinion to [the petitioner]. [The petitioner] denies ever meeting with ... Selig, but the transcripts of the proceedings in the underlying case are consistent with the facts as described by ... Ovian and include references to the lack...