Grover v. Comm'r of Corr.

183 Conn.App. 804

194 A.3d 316

John GROVER

v.COMMISSIONER OF CORRECTION

AC 39879

Appellate Court of Connecticut.

Argued April 17, 2018

Officially released July 31, 2018

Damon A. R. Kirschbaum, with whom, on the brief, was Vishal K. Garg, Wethersfield, for the appellant (petitioner).

Bruce R. Lockwood, senior assistant state's attorney, with whom, on the brief, were Anne Mahoney, state's attorney, and Jo Anne Sulik, supervisory assistant state's attorney, for the appellee (respondent).

DiPentima, C.J., and Keller and Prescott, Js.

DiPENTIMA, C.J.

The petitioner, John Grover, appeals following the denial of his petition for certification to appeal 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 (1) abused its discretion in denying his petition for certification to appeal and (2) erroneously determined that he was not denied his constitutional rights to counsel free from conflicts of interest and to the effective assistance of counsel.¹

The record reveals the following relevant facts and procedural history. On October 25, 2013, the petitioner entered a plea of guilty under the Alford doctrine² to one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (2), and, on January 7, 2014, the court sentenced him to seven years imprisonment followed by ten years special parole; he also was required to register as a sex offender for ten years. At the petitioner's plea hearing, the prosecutor recited the following narrative.

In February 2011, the petitioner was in a relationship with the victim's mother and lived with her and the female victim in Scotland, Connecticut. At that time, the victim was ten years old.

"On [February 15, 2011] the victim went to school at Scotland Elementary School and she made a disclosure [that the petitioner] had touched her private areas and [had] also used lotion [on her]. Subsequently, the victim was interviewed the following day at a child-friendly location forensically.

"During that interview the victim disclosed [that the petitioner] and herself were alone in the master bedroom of the residence. The [petitioner] pulled down the pants of the victim and lifted up her shirt and began rubbing lotion on her stomach and on her legs to include also her inner thighs and also her vaginal area.

"At some point the [petitioner] took a vibrator that he had in his dresser and then also used that to have contact with [the victim's] intimate parts .... An investigation was conducted and ultimately an arrest warrant was applied for and granted charging [the petitioner] with the crime of risk of injury [to a child] and sexual assault in the first degree."

On April 6, 2011, the petitioner was arraigned and bond was set at $75,000 cash or surety; the petitioner posted bond the same day. The petitioner originally was charged with 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 § 53-21(a)(2).³

Prior to his arrest, the petitioner hired Attorney Jerome Paun to represent him during the criminal investigation. Following his arrest, the petitioner and Paun entered into a fee agreement for the purposes of pretrial representation. The agreement provided for a fixed fee of $7500 and covered all work leading up to trial. Under the terms of this same agreement, once the case was placed on the trial list, Paun was to be paid $250 an hour with a $5000 retainer to be paid in full within thirty days of the case being placed on the trial list. The petitioner was employed when he hired Paun and was able to pay the $7500 pretrial fee and to post bond for his release. While the petitioner did not pay the trial retainer in full, Paun estimated that he was able to pay $2000 of the $5000 owed.

After jury selection, but before trial, the petitioner reached a plea agreement with the prosecutor pursuant to which he pleaded guilty to one count of risk of injury to a child in violation of § 53-21(a)(2). He was sentenced on January 7, 2014.

On March 4, 2015, the petitioner filed an amended petition for writ of habeas corpus. Relevant to this appeal, the petitioner alleged that he was denied his constitutional right to counsel free from conflicts of interest because Paun had an actual conflict with respect to his representation of the petitioner. Specifically, he argued that Paun had a financial incentive to convince the petitioner to accept a plea rather than proceed to trial due to the fact that the petitioner was unable to pay Paun's trial retainer in full. The petitioner additionally claimed that he was denied his constitutional right to effective assistance of counsel because Paun failed (1) to retain or request funding from the trial court in order to retain a forensic mental health professional with expertise in investigating and assessing child sexual abuse allegations and (2) to identify innocent alternative explanations for the allegations against the petitioner.

The petitioner's habeas trial was held on two separate dates in October and December, 2015. At trial, the petitioner presented evidence from Dr. Nancy Eiswirth, an expert witness in forensic psychology, and Attorney Michael Sheehan, who testified as a legal expert in the area of criminal defense. Eiswirth testified that she had reviewed the victim's forensic interview and had identified several issues with respect to the manner in which it had been conducted. Specifically, Eiswirth opined that the interview was not tailored properly to accommodate the victim's age and mental development; she also was critical of the interviewer's failure to rectify contradictions and ambiguities in the victim's statement. Following this testimony, Sheehan testified that based on his experience, if it seemed likely that the forensic interview would be admitted into evidence, a reasonably competent defense attorney would have retained a forensic psychologist like Eiswirth to attack the credibility of the victim's statements made during the interview.

When asked whether he considered hiring an expert forensic psychologist, Paun testified that "it's always a consideration" and depended on the "terms of each particular case." Paun stated that based on his review of the forensic interview and his own interview of the victim,⁴ hiring an expert witness did not seem like a "terribly fruitful" strategy. Paun, whom the habeas court credited as conducting a full investigation of this case, did not consider the structure of the forensic interview to be improper nor did he find the interviewer's questions to be leading or coercive. Moreover, following his own interview of the victim, Paun concluded that her story remained largely consistent with her earlier statements. He consulted with the petitioner about the prospect of hiring an expert witness but cautioned that, given the strength of the state's case, there was a substantial possibility he would be found guilty at trial. Paun testified that the petitioner ultimately instructed him to negotiate a plea agreement.

On November 2, 2016, the habeas court denied the petition for writ of habeas corpus. The court found that Paun had not labored under a conflict of interest and had provided effective representation to the petitioner. The court rejected the petitioner's argument that Paun rendered deficient performance in failing to request funding for an expert witness because the petitioner was not indigent and would not have qualified for such assistance had it been requested. The habeas court also found that, irrespective of whether performance was deficient, the petitioner was not prejudiced by Paun's conduct and that even if Paun had obtained an expert opinion, he would have still advised the petitioner to plead guilty rather than proceed to trial. Thereafter, the petitioner filed a petition for certification to appeal. After the court denied the petition for certification to appeal, this appeal followed. Additional facts will be set forth as necessary.

I

The petitioner first claims that the habeas court improperly denied his petition for certification to appeal. We disagree and "begin by setting forth the procedural hurdles that the petitioner must surmount to obtain appellate review of the merits of a habeas court's denial of the habeas petition following denial of certification to appeal. In Simms v. Warden , 229 Conn. 178, 187, 640 A.2d 601 (1994), [our Supreme Court] concluded that ... [General Statutes] § 52-470(b) prevents a reviewing court from hearing the merits of a habeas appeal following the denial of certification to appeal unless the petitioner establishes that the denial of certification constituted an abuse of discretion by the habeas court. In Simms v. Warden , 230 Conn. 608, 615–16, 646 A.2d 126 (1994), [our Supreme Court] incorporated the factors adopted by the United States Supreme Court in Lozada v. Deeds , 498 U.S. 430, 431–32, 111 S.Ct. 860, 112 L.Ed. 2d 956 (1991), as the appropriate standard for determining whether the habeas court abused its discretion in denying certification to appeal. This standard requires the petitioner to demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.... A petitioner who establishes an abuse of discretion through one of the factors listed above must then demonstrate that the judgment of the habeas court should be reversed on its merits.... 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 claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous." (Emphasis in original; internal quotation marks omitted.) Haughey v. Commissioner of Correction , 173 Conn. App. 559, 562–63...