Bassow v. Rittman

Hal Bassow aka Harold Lewis v. Mirian Delphin Rittman, Commissioner of Mental Health

No. MMXCV164020459S

Superior Court of Connecticut, Judicial District of Middlesex, Middletown

February 22, 2018

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Domnarski, Edward S., J.

MEMORANDUM OF DECISION

Domnarski, J.

I INTRODUCTION

The petitioner, Hal Bassow, brings this petition for a writ of habeas corpus claiming that his trial counsel, Robert Meredith, rendered ineffective assistance prior to, during and after the petitioner plead not guilty for reason of mental disease or defect^[1] to sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2), and risk of injury to a child in violation of General Statutes § 53-21(a)(2), which resulted in the petitioner’s acquittal and commitment to the jurisdiction of the Psychiatric Security Review Board (board) for a period not to exceed forty years. The petitioner seeks an order from this court voiding his plea, returning his criminal case to the trial court for further proceedings, or immediately releasing the petitioner from custody. As set forth below, the court concludes that even if the petitioner could satisfy his burden to establish that Attorney Meredith’s performance was constitutionally deficient, the petitioner has failed to establish he suffered prejudice as a result. Consequently, the petition is denied.

The petitioner’s operative third amended petition contains two counts. Count one challenges the constitutionality of the petitioner’s plea of not guilty for reason of mental defect or disease based upon the trial court’s failure to properly canvass him as required by Duperry v. Solnit, 261 Conn. 309, 329, 803 A.2d 287 (2002). Nevertheless, the respondent, Mirian Delphin Rittman, Commissioner of Public Mental Health, argues, and the petitioner concedes, that this claim is procedurally defaulted because the petitioner did not raise the issue or failed to object at the criminal trial, and failed to take an appeal. Therefore, the court need not consider the petitioner’s challenge to the constitutionality of his plea of not guilty for reason of mental disease or defect.

Count two alleges ineffective assistance of Attorney Meredith, in that he: (1) failed to advise the petitioner of other plea options; (2) improperly pressured the petitioner to accept a not guilty plea for reason of mental disease or defect; (3) failed to advise the petitioner that it was likely that he would be committed to the board for an extensive period of time; (4) failed to ensure that the petitioner was properly canvassed; (5) failed to advise the petitioner that he could withdraw or appeal his plea based upon the inadequacy of the canvass; and (6) failed to properly research the law and standards regarding the plea. The petitioner further alleges that, but for the deficient representation of Attorney Meredith, the proceedings would have been different, in that he would have: (A) not agreed to enter into a plea of not guilty for reason of mental defect or disease; (B) entered into a guilty plea for a definite sentence; (C) withdrawn his plea; or (D) filed an appeal to overturn his commitment.

The habeas trial took place on August 22, 2017, and the parties filed simultaneous post-trial briefs on November 13, 2017.

II FINDINGS OF FACT

At the petitioner’s criminal trial, held on September 7, 2012 evidence was presented through lay and expert witnesses that the petitioner had sexually assaulted a three-year-old. At the time of the incident that occurred on October 9, 2010 the petitioner was babysitting the victim. Forensic testing revealed the presence of human semen on an anal swab taken from. the victim and a sample taken from the victim’s diaper. Further testing revealed DNA matches to the petitioner. At the trial, Attorney Meredith presented testimony from Dr. Peter Morgan, a psychiatrist, who stated that because of mental illness and pre-existing mental defects, the petitioner lacked the capacity to appreciate the wrongfulness of his actions. Dr. Morgan indicated in his report that the petitioner indicated to him that he had assaulted the child. On December 7, 2012, the court committed the petitioner to the jurisdiction of the board for a period not to exceed forty years. The petitioner is presently confined at Whiting Forensic Institute.

III DISCUSSION

In count two of his third amended petition, the petitioner claims that he was deprived of his constitutional right to the effective assistance of counsel and, as a result, it is reasonably probable that the outcome of the proceedings would have been different. The court concludes that even if the petitioner could satisfy his burden to establish that Attorney Meredith’s performance was constitutionally deficient,^[2] the petitioner has failed to establish that he suffered prejudice as a result.

The court’s analysis is framed by the following principles. " A criminal defendant’s right to the effective assistance of counsel ... is guaranteed by the sixth and fourteenth amendments to the United States Constitution and by article first, § 8, of the Connecticut Constitution ... To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the [s]ixth [a]mendment ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different ... The claim will succeed only if both prongs are satisfied." (Citations omitted; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203, cert. denied sub nom, Small v. Lantz, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).

" [A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies ... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed." (Internal quotation marks omitted.) State v. Brown, 279 Conn. 493, 525-26, 903 A.2d 169 (2006). " Furthermore, [i]n a habeas corpus proceeding, the petitioner’s burden ... is not met by speculation ... but by demonstrable realities ." (Emphasis in original; internal quotation marks omitted.) Carpenter v. Commissioner of Correction, 171 Conn.App. 758, 767, 157 A.3d 1153, cert. denied, 325 Conn. 924, 160 A.3d 1067 (2017); Crawford v. Commissioner of Correction, 285 Conn. 585, 599, 940 A.2d 789 (2008).

" In assessing prejudice under Strickland, the question is not whether a court can be certain counsel’s performance had no effect on the outcome ... Instead, Strickland asks whether it is reasonably likely the result would have been different ... This does not require a showing that counsel’s actions more likely than not altered the outcome, but the difference between Strickland ’s prejudice standard and a more-probable-than-not standard is slight and matters only in the rarest case ... The likelihood of a different result must be substantial, not just conceivable." (Internal quotation marks omitted) Anderson v. Commissioner of Correction, 313 Conn. 360, 376, 98 A.3d 23 (2014), cert. denied sub nom, Anderson v. Semple, 135 S.Ct. 1453, 191 L.Ed.2d 403 (2015).^[3]

Based upon the foregoing and the claims framed by the third amended petition, in order to establish that he suffered prejudice as a result of Attorney Meredith’s allegedly deficient representation, the petitioner must establish that it is reasonably probable that he would have: (A) not agreed to enter into a plea of not guilty for reason of mental defect or disease; (B) entered into a guilty plea for a definite sentence; (C) withdrawn his plea; or (D) filed an appeal to overturn his commitment.

A

The petitioner’s first claim of prejudice is that he would not have agreed to enter into a plea of not guilty for reason of mental defect or disease. To support this claim, the petitioner avers that Attorney Meredith failed to advise the petitioner of other plea options, improperly pressured the petitioner to accept a not guilty plea for reason of mental disease or defect, and failed to advise the petitioner that it was likely that he would be committed to the board for an extensive period of time.

In the present case, the credible evidence adduced at trial fails to establish that there was a reasonable likelihood that, but for Attorney Meredith’s allegedly deficient performance, that the petitioner would have foregone a plea of not guilty for reason of mental defect or disease. Attorney Meredith testified that the petitioner’s primary goal was to avoid incarceration in a prison. Instead, the petitioner wanted to be placed in a hospital setting. In view of the strong evidence against the petitioner, and in consideration of the petitioner’s stated desire to avoid prison incarceration Attorney Meredith pursued a plea of not guilty for reason of mental defect or disease.

It must be noted that the petitioner was advised of the maximum period of confinement, forty-five years, when he was canvassed on September 7, 2012, prior to the trial wherein he raised the defense of not guilty for reason of mental defect or disease. At the canvas, the petitioner was asked if he understood he could be...