Mercer v. Comm'r of Corr.

306 A.3d 1073

222 Conn.App. 713

222 Conn.App. 713

Leon MERCER

v.COMMISSIONER OF CORRECTION

(AC 45273)

Appellate Court of Connecticut.

Argued September 11, 2023

Officially Released December 12, 2023

Erica A. Barber, assistant public defender, for the appellant (petitioner).

Linda F. Rubertone, senior assistant state’s attorney, with whom, on the brief, were Joseph Corradino, state’s attorney, and Susan Campbell, assistant state’s attorney, for the appellee (respondent).

Moll, Cradle and Suarez, Js.

MOLL, J.

₇₁₆The petitioner, Leon Mercer, appeals, following the granting of his petition for certification to appeal, from the judgment of the habeas court denying ₇₁₇his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that his criminal defense counsel, Attorney Dean Popkin, did not render ineffective assistance during the criminal proceedings underlying his conviction. We disagree and, accordingly, affirm the judgment of the habeas court.

The following facts, procedural history, and information relating to the petitioner’s criminal charges, as set forth by this court in the petitioner’s direct appeal from his conviction or as undisputed in the record, are relevant to our resolution of this appeal. "On April 4, 2014, the [petitioner] and his wife, Andrea Mercer (Mercer) were with Tangela S. (Tangela),¹ Mercer’s half-sister, and other guests, at Tangela’s apartment. They all left the apartment to drink wine at the Ramada Inn, leaving Tangela’s six children, including the sixteen year old victim, and the two children of one of the guests in the apartment. The adults returned from the Ramada Inn at approximately 1 a.m. on April 5, 2014. The victim awoke when they entered.

"The [petitioner] was drunk, behaving in an obnoxious manner, and insulting Mercer. One of the other guests told him to leave, and the [petitioner] stated that he was going to his car. Instead of leaving the apartment and going to his car, however, the [petitioner] entered the bedroom where the victim was located. He and the victim engaged in conversation before the [petitioner] pulled the covers off the victim’s legs and stalled rubbing them. The victim repeatedly tucked the blankets back under her in an effort to stop the [petitioner] from rubbing her legs and told the [petitioner] to leave. The ₇₁₈[petitioner] pulled the covers off her, turned her over, put his hand over her nose and mouth, unbuttoned her pants, and forcibly touched her clitoris. Not long after, Tangela and Mercer walked down the hallway toward the bedroom. The [petitioner] jumped up, rushed out of the bedroom, and quickly left the apartment. The victim told [Tangela] what the [petitioner] had done, and Tangela reported it to the police.

"On August 27, 2015, the [petitioner] was arrested. Because the state thought that the victim was under the age of sixteen at the time of the incident, the state’s September 14, 2015 long form information charged the [petitioner] with sexual assault in the first degree in violation of [General Statutes] § 53a-70 (a) (1), unlawful restraint in the first degree in violation of [General Statutes] § 53a-95, and risk of injury to a child in violation of General Statutes § 53-21 (a) (2). The age of the victim [was] an important factor in determining the severity of the charges. Sexual assault in the first degree, in violation of § 53a-70 (a) (1), is a class A felony, rather than class B, if the victim is under the age of sixteen,² and a necessary element for the charge of risk of injury to a child in violation of § 53-21 (a) (2) is that the victim is under sixteen.³

₇₁₉"On March 11, 2016, the [petitioner] rejected a plea offer of ten years [of] incarceration, execution suspended after four years, in connection with those three charges and proceeded to trial. On April 27, 2017, the first day of jury selection, the state filed a substitute long form information in which it additionally charged the [petitioner] with sexual assault in the fourth degree for ‘subject[ing] another person, under sixteen (16) years of age, to sexual contact without such person’s consent’ in violation of General Statutes § 53a-73a (a) (2).⁴ It was not until after court adjourned for the day on April 27, 2017, that the state confirmed that the victim was sixteen—not fourteen as it had previously erroneously believed—at the time of the incident.

"On April 28, 2017, the second day of jury selection, the state filed a substitute amended information that charged the [petitioner] with sexual assault in the first degree in violation of § 53a-70 (a) (1), sexual assault in the fourth degree in violation of § 53a-73a (a) (2),⁵ and unlawful restraint in the first degree in violation of § 53a-95, correcting the charges as to the victim’s age." (Footnotes in original; footnote omitted.) State v. Mercer, 191 Conn. App. 288, 289-91, 214 A.3d 436, cert. denied, 333 Conn. 938, 218 A.3d 1048 (2019).

During its case-in-chief, the state called four witnesses, including (1) the victim, (2) Tangela, and (3) Sergeant John Burke, who investigated the incident and prepared the petitioner’s arrest warrant. During the petitioner’s case-in-chief, Popkin called as witnesses ₇₂₀(1) Mercer and (2) the petitioner. In addition, the court admitted several exhibits in full into the record. During the habeas trial in the present action, Popkin testified that the defense strategy was (1) to discredit the victim and Tangela and to establish that they had submitted a false claim against the petitioner, and. (2) to demonstrate that the police investigation of the incident was inadequate.

"Following a trial, the jury found the [petitioner] guilty of sexual assault in the first degree and unlawful restraint in the first degree. [On September 6, 2017] [t]he court sentenced the [petitioner] to a total effective term of twelve years of incarceration, execution suspended after five years, two years of which were mandatory, and ten years of probation." Id., at 292, 214 A.3d 436. This court affirmed the judgment of conviction;⁶ id., at 293, 214 A.3d 436; and our Supreme Court denied the petitioner’s ensuing petition for certification to appeal. State v. Mercer, 333 Conn. 938, 218 A.3d 1048 (2019).

In November, 2019, the petitioner filed the underlying five count petition for a writ of habeas corpus, of which only counts one and four are relevant to this appeal.⁷ In count one, the petitioner alleged that Popkin rendered ineffective assistance with respect to plea bargaining stemming from his failures, inter alia, (1) to ascertain, ₇₂₁prior to trial, that the victim was over the age of sixteen at the time of the incident, and (2) to take appropriate action upon learning, on the second day of jury selection, the victim’s correct age at the time of the incident, including seeking to reopen plea negotiations. In count four, the petitioner alleged that Popkin rendered ineffective assistance in a myriad of ways during the criminal proceedings.

On August 27, 2020, the respondent, the Commissioner of Correction, filed a return denying the petitioner’s material allegations. The respondent also asserted four special defenses.⁸ On August 31, 2020, the petitioner filed a reply (1) noting his withdrawal of count two, to which the respondent’s first special defense was directed, and (2) responding to the allegations of the respondent’s remaining special defenses.

The matter was tried to the habeas court, Oliver, J., over the course of four days between October 20, 2020, and March 31, 2021. The court admitted various exhibits in full into the record, including copies of the transcripts of the petitioner’s criminal trial, and heard testimony from (1) the petitioner, (2) Mercer, (3) Popkin, (4) Kenneth Simon, the petitioner’s legal expert, (5) Richard Emanuel, the petitioner’s appellate counsel on his direct appeal from his conviction, and (6) James Oulundsen, a private investigator and a digital forensic examiner. Thereafter, the parties filed posttrial briefs. On October 25, 2021, the court issued a memorandum of decision rendering judgment in the respondent’s favor on the four remaining counts of the habeas petition.⁹ On October 29, 2021, the petitioner filed a petition for certification to appeal, which the court granted on the same day. ₇₂₂This appeal followed. Additional facts and procedural history will be set forth as necessary.

[1, 2] Before turning to the petitioner’s claims, we set forth the well settled stan- dard of review governing a habeas court’s judgment on ineffective assistance of counsel claims. "In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. … In a habeas trial, the court is the trier of fact and, thus, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony …. It is simply not the role of this court on appeal to second-guess credibility determinations made by the habeas court." (Citations omitted; internal quotation marks omitted.) Nelson v. Commissioner of Correction, 208 Conn. App. 878, 887-88, 265 A.3d 987 (2021), cert. denied, 341 Conn. 902, 268 A.3d 1186 (2022).

[3] "[I]t is well established that [a] criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. … This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. … It is axiomatic that the right to counsel is the right to the effective assistance of counsel. …

[4] "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...