Smalls v. Comm'r of Corr.

188 Conn.App. 525

204 A.3d 1249

Bernard SMALLS

v.COMMISSIONER OF CORRECTION

AC 40751

Appellate Court of Connecticut.

Argued January 3, 2019

Officially released March 19, 2019

Naomi T. Fetterman, for the appellant (petitioner).

Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were Patrick Griffin, state's attorney, and Adrienne Russo, assistant state's attorney, for the appellee (respondent).

DiPentima, C.J., and Sheldon and Moll, Js.

SHELDON, J.

Following the granting of his petition for certification to appeal, the petitioner, Bernard Smalls, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the habeas court erred in rejecting his claim that his prior habeas attorney rendered ineffective assistance by failing effectively to raise his claim that his attorney in his underlying criminal trial rendered ineffective assistance by failing to explain to him the implications of a plea offer that he rejected. We affirm the judgment of the habeas court.

The following undisputed procedural history is relevant to this appeal. On December 7, 2001, the petitioner was sentenced to a total effective sentence of fifty years incarceration after being convicted of murder by use of a firearm in violation of General Statutes § 53a-54a (a), risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (1), and criminal possession of a firearm in violation of General Statutes (Rev. to 1999) § 53a-217 (a). His sentence was enhanced by a guilty finding of commission of a class A, B or C felony with a firearm in violation of General Statutes § 53-202k. The petitioner's conviction was affirmed on direct appeal. See State v. Smalls , 78 Conn. App. 535, 548, 827 A.2d 784, cert. denied, 266 Conn. 931, 837 A.2d 806 (2003).

The petitioner filed his first habeas petition in 2004. On July 31, 2007, the petitioner, who was then represented by Attorney Cheryl A. Juniewic, filed an amended petition, wherein he alleged, inter alia,¹ that he was denied the effective assistance of his trial counsel, Michael Moscowitz. The petitioner claimed, inter alia, that Moscowitz "did not adequately consult with or advise [the] petitioner concerning the status of any plea negotiations, any potential plea agreements or the consequences of accepting a plea agreement as opposed to the consequences of going to trial before a jury." The habeas court rejected the petitioner's claim, finding that "the twenty-five year offer of pleading to murder was in fact conveyed to [the petitioner], and he rejected that offer." This court dismissed the petitioner's appeal from the judgment of the habeas court.

See Smalls v. Commissioner of Correction , 146 Conn. App. 909, 78 A.3d 307 (2013), cert. denied, 311 Conn. 931, 87 A.3d 579 (2014).

On March 12, 2012, the petitioner commenced this habeas action, claiming ineffective assistance by Juniewic in his prior habeas action. He filed a second amended petition on January 20, 2017, wherein he claimed that Juniewic rendered ineffective assistance by, inter alia, failing effectively to raise the claim that Moscowitz was ineffective for failing to fully explain the plea offer to him.

After a two day trial, the habeas court rendered a decision rejecting the petitioner's claim that Juniewic rendered ineffective assistance to him in his previous habeas action. The habeas court concluded that the petitioner failed to prove that Juniewic's representation of him was deficient or prejudicial. The court explained its ruling as follows: "In the instant matter, all of the credible evidence adduced at the habeas trial clearly demonstrates that the petitioner would not have accepted any plea offer for a murder charge from the prosecuting authority. Attorney Moscowitz testified credibly at the habeas trial that he reviewed with the petitioner the nature and elements of the charges against him, the minimum and maximum sentences he could receive if convicted, and what the state would have to prove in order to convict the petitioner of the charges. Attorney Moscowitz also testified that he presented a twenty-five year offer to the petitioner and advised him to take it, but the petitioner refused to plead guilty unless the [principal charge was] reduced from murder to manslaughter, which [the state's attorney] was unwilling to do. The petitioner also testified at the habeas trial that he did not want to plead guilty to a murder charge. Furthermore, [the state's attorney] testified that he was responsible for all decisions regarding the charges the petitioner faced, and he was not willing to reduce the murder charge in this case. As a result, the court finds that Attorney Moscowitz properly conveyed the information regarding the plea offer to the petitioner, and therefore his conduct did not constitute deficient performance. Furthermore, it is not reason-ably probable that the petitioner was going to accept the plea offer given the fact that he admitted that he did not want to plead [guilty] to a murder charge. As a result, the petitioner has failed to sustain his burden of establishing that Attorney Moscowitz was ineffective for failing to properly explain a plea offer, and therefore his claim of ineffective assistance against Attorney Juniewic must be denied." The habeas court granted the petitioner's petition for certification to appeal, and this appeal followed.

The petitioner claims that the habeas court erred in rejecting his claim that Juniewic rendered ineffective assistance in his first habeas action. Specifically, the petitioner claims that Juniewic rendered ineffective assistance by failing effectively to argue that Moscowitz's representation of him was ineffective because he failed to explain that the twenty-five year plea offer would have resolved all charges that were then pending against him. We disagree.

"The use of a habeas petition to raise an ineffective assistance of habeas counsel claim, commonly referred to as a habeas on a habeas, was approved by our Supreme Court in Lozada v. Warden , 223 Conn. 834, 613 A.2d 818 (1992). In Lozada , the court determined that the statutory right to habeas counsel for indigent petitioners provided in General Statutes § 51-296 (a) includes an implied requirement that such counsel be effective, and it held that the appropriate vehicle to challenge the effectiveness of habeas counsel is through a habeas petition.... In Lozada , the court explained that [t]o succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective. [Id.,] at 842, 613 A.2d 818. As to each of those inquiries, the petitioner is required to satisfy the familiar two-pronged test set forth in Strickland v. Washington , [466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ]. First, the [petitioner] must show that counsel's performance was deficient.... Second, the [petitioner] must show that the deficient performance prejudiced the defense.... Unless a [petitioner] makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the...