Rogers v. Comm'r of Corr.

194 Conn.App. 339

221 A.3d 81

Thomas ROGERS

v.COMMISSIONER OF CORRECTION

AC 41974

Appellate Court of Connecticut.

Argued September 5, 2019

Officially released November 12, 2019

Norman A. Pattis, Bethany, with whom, on the brief, was Kevin Smith, New Haven, for the appellant (petitioner).

Michele C. Lukban, Rocky Hill, senior assistant state's attorney, with whom, on the brief, were Patrick Griffin, state's attorney, and Rebecca Barry, supervisory assistant state's attorney, for the appellee (respondent).

Lavine, Prescott and Bear, Js.

PRESCOTT, J.

In this "habeas on a habeas,"¹ the petitioner, Thomas Rogers, appeals from the habeas court's judgment denying his amended petition for a writ of habeas corpus.² On appeal, the petitioner claims that the habeas court improperly rejected his claim that his trial counsel, Paul Carty, provided him with ineffective assistance with respect to whether he should have accepted a plea offer. The petitioner asserts that, but for the deficient legal advice he received from his trial counsel, he would have accepted a thirty-five year plea deal. The petitioner also claims that the habeas court improperly rejected his claim that his prior habeas counsel, Frank P. Cannatelli, provided ineffective assistance by failing to raise this claim in his first habeas petition. Having reviewed the record, we conclude that the habeas court properly denied the amended petition for a writ of habeas corpus, and, accordingly, we affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our disposition of the petitioner's claim. The petitioner participated in a shooting that occurred on November 20, 1994, that resulted in the death of one of the victims. State v. Rogers , 50 Conn. App. 467, 469, 718 A.2d 985, cert. denied, 247 Conn. 942, 723 A.2d 319 (1998). After the shooting, the petitioner, along with Isaac Council and Larry McCowen, returned to the apartment of the petitioner's girlfriend and had a conversation in the living room. Id., at 471, 480–81, 718 A.2d 985. Council's girlfriend, Safira McLeod, overheard the postshooting conversation between the petitioner, Council, and McCowen. Id., at 480–81, 718 A.2d 985. From the kitchen, which is where she was during the conversation, McLeod was unable to hear everything they were discussing. Id., at 481, 718 A.2d 985. She did, however, hear them discuss a shooting, people running, and someone being hit. Id. During the conversation, the petitioner, Council, and McCowen were laughing. Id. McLeod heard the petitioner's voice, but she was unable to attribute anything said during the conversation to any one of its participants. Id. Furthermore, McLeod neither heard the petitioner deny participation in the shooting nor dispute what Council and McCowen were saying. Id. The petitioner subsequently was charged with murder, conspiracy to commit murder, attempt to commit murder, criminal possession of a firearm, and illegal possession of a weapon in a motor vehicle.

The petitioner alleges that his trial counsel assured him that McLeod's testimony pertaining to the postshooting conversation would not be admitted into evidence because it constituted hearsay.

He further alleges that trial counsel did not explain to him that the testimony could be admitted as an adoptive admission.³

The petitioner, however, also was aware of other parts of McLeod's potential testimony that were damaging to his defense and that were not within the scope of his trial counsel's alleged deficient advice regarding the testimony's admissibility. The habeas court stated that, aside from McLeod's recollection of the postshooting conversation, McLeod's testimony included "evidence that the petitioner left with Council and McCowen, dressed as the shooters were attired, in a vehicle that matched that of the shooters at the time of the shooting, returned as a group, concealed the vehicle behind a house and that vehicle contained a spent shell casing ...."

Armed with this knowledge and advice from his trial counsel, the petitioner did not accept an offer to plead guilty in exchange for a thirty-five year sentence and, instead, requested a disposition in which he would receive a sentence of twenty years.

Contrary to his trial counsel's prediction, the trial court admitted McLeod's testimony pertaining to the postshooting conversation as an adoptive admission.⁴ At the conclusion of the jury trial, the petitioner was convicted of all the crimes with which he was charged. Id., at 468, 718 A.2d 985. He received a total effective sentence of sixty years of incarceration.

On August 31, 2016, the petitioner filed an amended petition for a writ of habeas corpus. The matter subsequently was tried before the habeas court, which issued a written memorandum of decision on July 23, 2018, denying the petition. In that memorandum of decision, the habeas court stated that the petitioner abandoned all claims for relief in his amended petition except for those enumerated in the ninth and tenth counts.⁵ With respect to those counts, the habeas court stated: "[T]he petitioner asserts that ... Cannatelli provided ineffective assistance by failing to raise claims in the earlier habeas case that trial counsel ... rendered ineffective assistance by inadequately or incorrectly advising the petitioner, when the petitioner was considering a plea offer of thirty-five years, concerning the doctrine of an adoptive admission [and its applicability to McLeod's testimony pertaining to the postshooting conversation] and that the petitioner could be convicted as an accessory to murder if he was not in the vehicle from which the gunfire emanated and caused the death of the victim. [The petitioner] further asserts that, had he received accurate legal advice from [trial counsel] on these points, he would have accepted the plea disposition rather than have proceeded to trial."

Without explicitly resolving the petitioner's allegations of deficient performance, the habeas court concluded that "the petitioner ... failed to meet his burden of demonstrating that a reasonable likelihood exists that, but for [trial counsel's] misadvice regarding the inadmissibility of a portion of McLeod's testimony, he would have accepted the thirty-five year proposed disposition," and, therefore, it denied the petition for habeas corpus relief. This appeal followed.

On appeal, the petitioner claims that the habeas court incorrectly found that, even if he had received accurate advice from his trial counsel concerning the admissibility of McLeod's testimony about the postshooting conversation, he, nevertheless, would have rejected the plea agreement. We disagree with the petitioner.

We first set forth the well established legal principles governing claims of ineffective assistance of counsel. To succeed on a claim of ineffective assistance of counsel, a petitioner must show that his counsel performed deficiently and that his counsel's deficient performance prejudiced his defense. Strickland v. Washington , 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) ; Lozada v. Warden , 223 Conn. 834, 842–43, 613 A.2d 818 (1992).

In those cases in which a judgment of conviction was rendered following the rejection of a plea offer, "to establish prejudice, a petitioner need establish only that (1) it is reasonably probable that, if not for counsel's deficient performance, the petitioner would have accepted the plea offer, and (2) the trial judge would have conditionally accepted the plea agreement if it had been presented to the court." Ebron v. Commissioner of Correction , 307 Conn. 342, 357, 53 A.3d 983 (2012), cert. denied sub nom. Arnone v. Ebron , 569 U.S. 913, 133 S. Ct. 1726, 185 L. Ed. 2d 802 (2013) ; cf. Hill v. Lockhart , 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985) (holding that, in cases in which petitioner alleges that he would have rejected plea deal and gone to trial but for counsel's deficient advice, "the [petitioner] must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial").⁶ "In a habeas corpus proceeding, the petitioner's burden of proving that a fundamental unfairness had been done is not met by speculation ... but by demonstrable realities." (Internal quotation marks omitted.) Sanders v. Commissioner of Correction , 169 Conn. App. 813, 834, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904, 156 A.3d 536 (2017).

"The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed [on appeal] unless they are clearly erroneous.... Thus, the [habeas] court's factual findings are entitled to great weight.... Furthermore, a finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Citation omitted; internal quotation marks omitted.) Orcutt v. Commissioner of Correction , 284 Conn. 724, 741–42, 937 A.2d 656 (2007). "The application of the habeas court's factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review." (Internal quotation marks omitted.) Gaines v. Commissioner of Correction , 306 Conn. 664, 677, 51 A.3d 948 (2012).⁷

To demonstrate prejudice resulting from his trial counsel's alleged deficient performance, the petitioner had the burden of demonstrating by a preponderance of the evidence that it was reasonably probable that, but for the deficient advice he received from his trial counsel, he would have accepted the thirty-five year plea deal. See Sanders v. Commissioner of Correction , supra, 169 Conn. App. at 820, 836–38, 153 A.3d 8 (affirming denial of petition for certification to appeal habeas court's judgment after habeas court "concluded that ...