Glen S. v. Comm'r of Corr.

307 A.3d 951

223 Conn.App. 152

GLEN S.

v.COMMISSIONER OF CORRECTION^*

(AC 45655)

Appellate Court of Connecticut.

Argued October 5, 2023

Officially Released January 2, 2024

Vishal K. Garg, West Hartford, assigned counsel, for the appellant (petitioner).

Melissa E. Patterson, senior assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and Donna Marie Fusco, assistant state’s attorney, for the appellee (respondent).

Suarez, Seeley and Norcott, Js.

SUAREZ, J.

[1–5] ₁₅₃The petitioner, Glen S., appeals following the denial of his petition ₁₅₄for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claims that the court (1) abused its discretion in denying his petition for certification to appeal and (2) improperly denied his petition for a writ of habeas corpus because the court erred in precluding evidence of his character for truthfulness.¹ We dismiss the appeal.

The following procedural history is relevant to this appeal. The petitioner was charged with one count of sexual assault in a cohabitating relationship in violation of General Statutes (Rev. to 2007) § 53a-70b (b)² and one count of assault in the third degree in violation of General Statutes § 53a-61. The charges resulted from a complaint by the petitioner’s girlfriend, who alleged that the petitioner wanted her to ingest an antipsychotic ₁₅₅medication known as Seroquel, and, when she refused, he struck her numerous times with his fist, ordered her to bathe while he watched, and forced her to engage in penile-vaginal intercourse. Attorney TaShun Lake represented the petitioner at all relevant times in the underlying proceedings.

[6–8] On August 13, 2008, the petitioner pleaded guilty, under the Alford doctrine,³ to one count of sexual assault in a cohabitating relationship in violation of General Statutes (Rev. to 2007) § 53a-70b (b). The court, Fasano, canvassed the petitioner when he entered his plea and accepted the plea after finding that it was made knowingly and voluntarily. On that same day, the petitioner was sentenced by the court pursuant to an agreed upon recommendation to serve a total effective sentence of fifteen years of incarceration, suspended after five years, followed by fifteen years of probation.

On June 26, 2017, the petitioner initiated the present habeas petition. On December 28, 2021, the petitioner’s habeas counsel filed an amended petition on the petitioner’s behalf. In the December 28, 2021 amended petition, the petitioner claimed that his trial counsel was ineffective for allowing him to plead guilty while under the influence of prescription drugs that affected his ability to give a knowing and meaningful plea. The petitioner further alleged that, but for trial counsel’s ineffective assistance, he would have gone to trial and been ₁₅₆acquitted of all charges. On January 3, 2022, the respondent, the Commissioner of Correction, filed a return, leaving the petitioner to his proof and asserting procedural default as a special defense.

On January 19, 2022, a trial was held before the court, M. Murphy, J., at which the petitioner attempted to call his first witness, Sam Romowi,⁴ to testify regarding his character for truthfulness. The respondent objected to Romowi’s testimony on the grounds of relevance. After hearing arguments by counsel, the court sustained the respondent’s relevancy objection. Thereafter, only the petitioner testified at the trial. The evidence before the court consisted only of the petitioner’s testimony and the transcript of the August 13, 2008 plea hearing. Following the trial, both parties submitted posttrial briefs.

On May 18, 2022, in a memorandum of decision, the court denied the petitioner’s petition for a writ of habeas corpus. The court concluded that "the petitioner failed to demonstrate deficient performance by showing that trial counsel’s representation fell below an objective standard of reasonableness." The court found that "[t]he evidence presented failed to prove that the prescribed medication the petitioner received affected his ability to give a knowing and meaningful plea and that counsel was therefore ineffective in allowing the petitioner to plead guilty. Furthermore, even if counsel’s performance was deficient, this court does not find the petitioner’s testimony that he would have otherwise pleaded not guilty and insisted on going to trial to be credible." The habeas court further found that "the trial court thoroughly canvassed the petitioner when he entered his plea. When the court asked the petitioner ₁₅₇if he was presently under the influence of any substance, the petitioner responded that he was on medication but that it would not interfere with his plea, and that he understood the proceedings and knew what he was doing despite taking the medication. … The petitioner then informed the court that the charges he faced carried a maximum sentence of twenty years and indicated the corrections he wished to be made to the state’s recitation of facts. The petitioner also provided specific details about another case, informing the court that he also had to plead guilty to a violation of probation …."

Thereafter, the petitioner filed a petition for certification to appeal, which the court denied. In the petition for certification to appeal, the petitioner set forth the grounds for his appeal, including the issue of whether the court erred by precluding his character witness from testifying.⁵ This ap- peal followed. Additional procedural history will be provided as necessary.

I

We first address the petitioner’s claim that the habeas court abused its discretion in denying his petition for ₁₅₈certification to appeal. We conclude that the habeas court’s ruling did not constitute an abuse of its discretion.

The following legal principles are relevant to our resolution of the petitioner’s claim. "General Statutes § 52-470 (g) provides: No appeal from the judgment rendered in a habeas corpus proceeding brought by or on behalf of a person who has been convicted of a crime in order to obtain such person’s release may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or, if such judge is unavailable, a judge of the Superior Court designated by the Chief Court Administrator, to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.

[9–12] "Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. … A petitioner may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of reason … [the] court could resolve the issues [in a different manner] or … the questions are adequate to deserve encouragement to proceed further. … The required determination may be made on the basis of the record before the habeas court and applicable legal principles. … If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits. …

[13, 14] "In determining whether the habeas court abused its discretion in denying the petitioner’s request for certification, we necessarily must consider the merits of the petitioner’s, underlying [claim] to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous. In other words, we review ₁₅₉the petitioner’s substantive [claim] for the purpose of ascertaining whether [that claim satisfies] one or more of the three, criteria … adopted by [our Supreme Court] for determining the propriety of the habeas court’s denial of the petition for certification." (Citations omitted; internal quotation marks omitted.) Ayuso v. Commissioner of Correction, 215 Conn. App. 322, 331–32, 282 A.3d 983, cert. denied, 345 Conn. 967, 285 A.3d 736 (2022).

[15] For the reasons set forth in part II of this opinion, we conclude, on the basis of our review of the record and applicable legal principles, that the petitioner has failed to demonstrate that the claim of error related to the habeas court’s denial of his petition for a writ of habeas corpus involves an issue that is debatable among jurists of reason, that a court could resolye the issue in a different manner, or that the question is adequate to deserve encouragement to proceed further. Accordingly, we dismiss the appeal.

II

[16, 17] On appeal, the petitioner claims that the habeas court improperly precluded evidence of his character for truthfulness. Specifically, he claims that the court abused its discretion by excluding Romowi’s testimony on relevancy grounds because that testimony was relevant to a central issue in the petitioner’s ineffective assistance of counsel claim. The petitioner argues that his credibility was relevant because it pertains to the prejudice prong under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct 2052, 80 L. Ed. 2d 674 (1984).⁶ ₁₆₀The petitioner avers that the court’s assessment of the prejudice prong of Strickland involves a credibility determination regarding his assertion that he would have insisted on going to trial but for his trial counsel’s deficient performance in connection with his plea. We are not persuaded.

The following additional procedural history is relevant to the present claim. At the outset of the habeas trial and before the petitioner was called to testify, the petitioner’s attorney sought to present testimony from Romowi about the petitioner’s alleged character for truthfulness and honesty. The following colloquy between the court, the petitioner’s counsel, and the respondent’s counsel took place:

"[The Petitioner’s Counsel]: Petitioner calls Mr. Sam Romowi ….

"[The Respondent’s Counsel]: Your Honor … I would ask for [an] offer of proof on this...