Robert S. v. Comm'r of Corr.

194 Conn.App. 382

221 A.3d 493

ROBERT S.

v.COMMISSIONER OF CORRECTION^*

AC 41895

Appellate Court of Connecticut.

Argued September 11, 2019

Officially released November 19, 2019

James E. Mortimer, assigned counsel, for the appellant (petitioner).

Lawrence J. Tytla, supervisory assistant state's attorney, for the appellee (respondent).

Keller, Bright and Bear, Js.

BEAR, J.

The petitioner, Robert S., appeals following the denial of his amended 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) improperly concluded that he failed to establish that he had received ineffective assistance from his trial counsel because they failed to conduct a proper investigation and to advise him of the viability of an intoxication defense. We conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal and, accordingly, dismiss the petitioner's appeal.

The habeas court's memorandum of decision sets forth the following relevant facts and procedural history: "In the early hours of April 20, 2004, in New London, the petitioner visited the apartment of his former girlfriend [F, who was also the mother of his son]. While there, he stabbed [F] multiple times as well as stabbing a neighbor .... While [F] sought refuge in [the neighbor's] apartment, the petitioner barricaded himself, his fifteen month old son ... and [F's] ten year old sister ... in [F's] apartment.

"When the police arrived and pleaded with the petitioner to permit them to enter the apartment, the petitioner falsely warned them that he had a gun and would commence shooting if anyone tried to enter. The police could hear [F's sister] screaming for help but could not break down the metal door to the apartment.

"Eventually, the petitioner unlocked the door, and the police discovered that the petitioner stabbed to death [both children]. The petitioner stabbed [F's sister] eleven times frontally and ten times in her back. She had six wounds to her neck. The petitioner stabbed [his son approximately] fourteen times, the blows distributed to the toddler's neck, scalp, chest, and abdomen....

"[T]he petitioner faced capital felony charges which allowed for imposition of the death penalty or life imprisonment without possibility of parole upon conviction. Murder of two persons in the course of a single transaction was a capital felony in 2004. See General Statutes § 53a-54b (7). The petitioner previously withdrew claims involving retroactive application of State v. Santiago , 318 Conn. 1, (2015).¹

"A bifurcation of the criminal trial into proceedings determining guilt and those pertaining to penalty was required in death penalty cases. See General Statutes § 53a-46a. Upon conviction of a capital offense, the fact finder then received evidence and argument concerning the existence or nonexistence of aggravating and mitigating circumstances in weighing whether the death penalty was appropriate. If not, then the accused received a life sentence without possibility of parole.

"After extensive investigation ... [the petitioner's trial counsel], Attorneys [Bruce] Sturman and [Fred] DeCaprio,² were able to negotiate a plea disposition to the charges [against the petitioner] in exchange for the state's abandonment of its quest for the death penalty. On May 11, 2007, the petitioner pleaded guilty pursuant to that agreement [under the Alford³ doctrine]." (Footnotes added.)

On January 22, 2014, the petitioner, then a self-represented litigant, filed a petition for a writ of habeas corpus. The petitioner subsequently requested and was appointed habeas counsel. On May 18, 2016, the petitioner amended his petition for a writ of habeas corpus, which was predicated on the alleged ineffective assistance of trial counsel. Specifically, the petitioner alleged that "[trial counsel] erroneously advised him that he had no viable defenses or evidence to mitigate the charges against him arising from intoxication; that [trial counsel] failed to investigate and research the law properly concerning intoxication as a defense or mitigant; that [trial counsel] afforded him insufficient time to consider the proposed plea disposition; that [trial counsel] misinformed him that a sentence to life imprisonment without possibility of parole was equivalent to a sixty year sentence; and misinformed him that he would become eligible for parole at such time." At the habeas trial on May 24, 2018, the habeas court heard testimony from the petitioner and his trial counsel.

The habeas court, Sferrazza, J. , in its May 31, 2018 memorandum of decision, denied the petitioner's amended petition for a writ of habeas corpus. On June 8, 2018, the petitioner filed a petition for certification to appeal, which the habeas court denied. This appeal followed. Additional facts will be set forth where necessary.

The petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal. We disagree.

"We begin by setting forth the applicable standard of review and 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 ... § 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 [resolution of the underlying claim involves] issues [that] 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 omitted; internal quotation marks omitted.) Blake v. Commissioner of Correction , 150 Conn. App. 692, 695, 91 A.3d 535, cert. denied, 312 Conn. 923, 94 A.3d 1202 (2014). "In other words, we review the petitioner's substantive claims for the purpose of ascertaining whether those claims satisfy 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." (Internal quotation marks omitted.)

Johnson v. Commissioner of Correction , 181 Conn. App. 572, 578, 187 A.3d 543, cert. denied, 329 Conn. 909, 186 A.3d 13 (2018). Furthermore, "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." (Internal quotation marks omitted.) Ricardo R. v. Commissioner of Correction , 185 Conn. App. 787, 797, 198 A.3d 630 (2018), cert. denied, 330 Conn. 959, 199 A.3d 560 (2019).

In determining whether there has been an abuse of discretion, every reasonable presumption should be given by this court in favor of the correctness of the habeas court's ruling, and reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. See Peeler v. Commissioner of Correction , 161 Conn. App. 434, 443, 127 A.3d 1096 (2015). Having set forth the appropriate standard of review, we next consider the petitioner's claims.

The petitioner claims that the habeas court improperly concluded that he received effective assistance of counsel. Specifically, the petitioner argues that trial counsel provided ineffective assistance both by failing to raise the defense of intoxication to mitigate the charges of capital murder and by failing to advise him about the viability of such a defense. We are not persuaded.

The following principles guide our review of a claim of ineffective assistance of counsel. After a guilty plea has been entered by a defendant and accepted by the court, "[i]n order to determine whether the petitioner has demonstrated ineffective assistance of counsel [when the conviction resulted from a guilty plea], we apply the two part test annunciated by the United States Supreme Court in [ Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) ] and [ Hill v. Lockhart , 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985) ].... In Strickland , which applies to claims of ineffective assistance during criminal proceedings generally, the United States Supreme Court determined that the claim must be supported by evidence establishing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance....

"To...