Roman v. Comm'r of Corr.

307 A.3d 934

223 Conn.App. 111

Jason A. ROMAN

v.COMMISSIONER OF CORRECTION

(AC 45971)

Appellate Court of Connecticut.

Argued September 20, 2023

Officially Released December 26, 2023

Judie Marshall, for the appellant (petitioner).

Melissa L. Streeto, senior assistant state’s attorney, with whom, on the brief, were Christian M. Watson, state’s attorney, Angela R. Macchiarulo, supervisory assistant state’s attorney, Michael J. Proto, senior assistant state’s attorney, and Sarah Hanna, former senior assistant state’s attorney, for the appellee (respondent).

Cradle, Suarez and Flynn, Js.

CRADLE, J.

₁₁₃The petitioner, Jason A. Roman, appeals following the granting of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner contends that the habeas court improperly rejected his claims of ineffective assistance on the part of both his criminal trial counsel and his appellate counsel. We affirm the judgment of the habeas court.

The following facts, as set forth by the habeas court, and procedural history are relevant to the petitioner’s claims on appeal. "The petitioner was charged with assault [of] public safety [personnel] in violation of General Statutes § 53a-167c (a) (1).¹ In a separate part B information, the petitioner was also charged with being a persistent felony offender in violation of General ₁₁₄Statutes § 53a-40 (g) and (o).² The underlying charges arose from an incident on May 2, 2014, the facts of which are not in dispute. New Britain police officers were dispatched to a reported potential domestic incident or protective order violation. When the police officers arrived at [the site of the incident], the petitioner and his mother … were in a white Toyota parked near the front of [the site]. A police officer investigating the reported dispute or violation went to the vehicle and asked [the petitioner] for his motor vehicle operator’s license. [The petitioner] was also asked to turn off the car engine. [The petitioner] gave the police officer his driver’s license and the police officer returned to his vehicle to contact dispatch to ascertain if there were any outstanding warrants at that time. [The petitioner’s] mother exited the vehicle at some point and sat on the sidewalk nearby. The police determined that [the petitioner] was not involved in the reported domestic dispute or protective order violation; however, the police were informed that there was a paperless arrest warrant for [the petitioner]. A police officer approached the vehicle and asked [the petitioner] to step out of the vehicle. [The petitioner] started the engine, which resulted in the police officer reaching inside the vehicle in an attempt to turn off the ignition. Police officers yelled ‘stop’ repeatedly but [the petitioner] drove off and the police officer was pulled along for about thirty to forty feet before he was able to free himself. [The petitioner] was subsequently arrested and charged." (Footnotes added.)

₁₁₅The petitioner was first represented by Attorney James Hardy, who entered an appearance at the petitioner’s arraignment on August 26, 2014. On April 29, 2015, the petitioner indicated on the record his intention to replace Hardy with new counsel.

After the court granted the petitioner multiple continuances to secure new counsel, Attorney William Gerace filed an appearance in lieu of Hardy’s appearance on July 20, 2015. On November 17, 2015, the petitioner was presented with a plea offer of six years of incarceration followed by four years of special parole, with the right to argue for a lesser sentence. After the court explained the offer, including the potential repercussions of going to trial, and gave the petitioner time to consider the offer, the petitioner entered not guilty pleas and elected a trial by jury.

On September 27, 2016, Gerace moved to withdraw his appearance on the basis that the petitioner had not responded to him or met with him. During a court appearance on October 17, 2016, the petitioner stated that he did not "trust [Gerace] enough to go to trial with him," and the court granted Gerace’s motion to withdraw his appearance. On the same day, the court appointed Michael Isko, a public de- fender, to represent the petitioner, On April 24, 2017, a hearing was held to determine the status of the petitioner’s ease and to schedule a date for trial to commence. At the hearing, the petitioner was asked by the court whether he wanted a trial to a jury, to a court, or whether he wanted to resolve his case by way of a plea agreement. The petitioner was presented with a new plea offer of four years of incarceration. Isko represented that, if the petitioner were to deride to go to trial, he intended to proceed with a jury trial. The petitioner then asked for a continuance "to be able to speak to his family about the new offer." The court, Alexander, J., gave him until April 26, 2017, to accept the offer or to reject it and ₁₁₆begin jury selection. On April 26, 2017, the petitioner appeared before Judge Alexander because he "indicated that [he] had some things [he] wanted to say on the record …." The petitioner asked to replace Isko with a special public defender, alleging that Isko was ineffective for not moving forward with a medical expert and not investigating the side effects of a medication he was taking at the time of the incident. The court informed the petitioner that he could seek new counsel but declined to continue the case further. Isko clarified that he had the petitioner’s "[medical and mental health] records from 2014, when this incident occurred," and stated that he would receive additional records before the start of evidence. To address the petitioner’s concerns, the court requested that Isko "make sure … [t]hat those records [would] be available [and] … analyzed for entry, as [tile petitioner] want[ed] that as part of his defense …." Jury selection commenced that day with Isko representing the petitioner.

During jury selection, the court, Keegan, J., explained that the part B information "enhances the penalty if [the petitioner were] convicted for the underlying offense" to a "twenty year felony instead of a ten year felony …." Isko confirmed that, even though he "[had not received] the part B [information] until [that] morning," he had "advised [the petitioner] of the potential of the part B [information] in that effect." The petitioner addressed the court to indicate that he was aware of the part B information and understood its potential consequences.

Trial commenced on May 1, 2017, with Judge Keegan presiding. On May 2, 2017, before the commencement of the second day of trial, the petitioner appeared before Judge Alexander who confirmed that Isko had received the additional records discussed on April 26, 2017, and that Isko had been able to present testimony in the petitioner’s defense. Judge Alexander also informed the ₁₁₇petitioner that it would be his decision whether to proceed with a jury trial or a bench trial if the part B information were to "[become] an issue …." Isko stated that he had "not discussed that with [the petitioner] as of yet." Trial continued, and the jury subsequently found the petitioner guilty of assault of public safety personnel. Following the jury’s verdict, Isko indicated to the court, Keegan, J., that he had not yet spoken with the petitioner about whether he wanted to have a bench trial or a jury trial on the part B information and asked for a short recess in order to do sb. Thereafter, during a canvass by a different judge, the court, D’Addabbo, J., declined to allow the petitioner to waive his right to a jury trial, finding that "[the petitioner was] not understanding what [he was] doing."³

The same day, the petitioner appeared again before Judge Keegan and a jury trial commenced on the part B information. The jury found the petitioner guilty of being a persistent felony offender and the court ₁₁₈accepted the verdict. Thereafter, the court ordered a presentence investigation report and scheduled a date for sentencing. On July 7, 2017, the court, Keegan, J., conducted a sentencing hearing in which the petitioner received a total effective sentence of twelve years of incarceration.⁴

Represented by Attorney David Reich, the petitioner appealed from the judgment of the trial court, which this court affirmed. State v. Roman, 187 Conn. App. 903, 200 A.3d 226, cert. denied, 331 Conn. 931, 208 A.3d 279 (2019).

On July 29, 2021, the petitioner filed his sixth amended petition for a writ of habeas corpus, alleging eight counts of ineffective assistance as to Isko and one count of ineffective assistance as to Reich.⁵ At the habeas trial on March 1 and April 7, 2022, the petitioner, through counsel, offered into evidence his medical records and presented the testimony of three witnesses: ₁₁₉Isko, a mitigation specialist, and himself. The petitioner did not call Reich, his direct appellate counsel, to testify. On August 23, 2022, the habeas court, M. Murphy, J., issued a memorandum of decision in which it concluded that the petitioner had failed to prove that Isko and Reich had provided ineffective assistance and denied his petition for a writ of habeas cor- pus.⁶ The habeas court thereafter granted certification to appeal, and this appeal followed. Additional facts and procedural history will be provided as necessary.

[1–6] We begin by setting forth the standard of review and the following relevant legal principles. "Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. 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." (Internal quotation marks omitted.) Lance W. v....