Townsend v. Commissioner of Correction

975 A.2d 1282

116 Conn.App. 663

Tim TOWNSEND v. COMMISSIONER OF CORRECTION.

No. 29284.

Appellate Court of Connecticut.

Argued March 10, 2009.

Decided August 25, 2009.

Mary H. Trainer, special public defender, for the appellant (petitioner).

James M. Ralls, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Linda N. Howe, senior assistant state's attorney, for the appellee (respondent).

DiPENTIMA, HARPER and HENNESSY, Js.

HENNESSY, J.

The petitioner, Tim Townsend, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, he claims that (1) his trial counsel was ineffective for not advising him of his appellate rights in connection with the denial of his motion to withdraw his plea, (2) his trial counsel was ineffective in his preparation for trial and (3) it was improper for the court to grant the motion filed by the respondent, the commissioner of correction, to quash the petitioner's subpoena duces tecum for the disciplinary records of police officers involved in the investigation of the underlying crime. We affirm the judgment of the habeas court.

The following facts are relevant to the petitioner's appeal. On May 23, 2002, the petitioner pleaded guilty, under the Alford¹ doctrine, to the crime of murder. On July 19, 2002, the date of sentencing, the petitioner requested that the court allow him to withdraw his guilty plea and to restore his case to the criminal docket. The matter was continued until August 2, 2002, at which time the court denied the petitioner's request and sentenced him to twenty-five years incarceration. The petitioner did not directly appeal from his conviction. On January 29, 2007, the petitioner filed a second amended petition for a writ of habeas corpus. After a hearing, the court denied the petition. The court granted the petition for certification to appeal on September 27, 2007. This appeal followed.

I

The petitioner claims that his trial counsel provided ineffective assistance due to inadequate trial preparation and by not advising the petitioner of his right to appeal from the denial of the motion to withdraw the guilty plea. The respondent argues that the court was correct in concluding that the petitioner's trial counsel's representation was not ineffective due to lack of trial preparation, because the petitioner never notified counsel that he wanted to appeal and there was no reasonable basis to appeal. We agree and will discuss the petitioner's claims in turn.

We first set forth the appropriate standard of review. "When reviewing the decision of a habeas court, the facts found by the habeas court may not be disturbed unless the findings were clearly erroneous.... The issue, however, of [w]hether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact.... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard." (Internal quotation marks omitted.) Mitchell v. Commissioner of Correction, 109 Conn. App. 758, 762, 953 A.2d 685, cert. denied, 289 Conn. 950, 961 A.2d 417 (2008).

"A habeas petitioner can prevail on a constitutional claim of ineffective assistance of counsel [only if he can] establish both (1) deficient performance, and (2) actual prejudice.... For ineffectiveness claims resulting from guilty verdicts, we apply the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).... For ineffectiveness claims resulting from guilty pleas, we apply the standard set forth in Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), which modified Strickland's prejudice prong....

"To satisfy the performance prong, the petitioner must show that counsel's representation fell below an objective standard of reasonableness.... A petitioner who accepts counsel's advice to plead guilty has the burden of demonstrating on habeas appeal that the advice was not within the range of competence demanded of attorneys in criminal cases.... The range of competence demanded is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.... Reasonably competent attorneys may advise their clients to plead guilty even if defenses may exist.... A reviewing court must view counsel's conduct with a strong presumption that it falls within the wide range of reasonable professional assistance and that a tactic that appears ineffective in hindsight may have been sound trial strategy at the time....

"To satisfy the prejudice prong, the petitioner must show a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.... Reasonable probability does not require the petitioner to show that counsel's deficient conduct more likely than not altered the outcome in the case, but he must establish a probability sufficient to undermine confidence in the outcome.... The Hill court noted that [i]n many guilty plea cases, the prejudice inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate ... the determination whether the error prejudiced the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Hill v. Lockhart, supra, [474 U.S.] at 59, 106 S.Ct. 366.... A reviewing court can find against a petitioner on either ground, whichever is easier." (Citations omitted; internal quotation marks omitted.) Baillargeon v. Commissioner of Correction, 67 Conn.App. 716, 721-23, 789 A.2d 1046 (2002).

A

The petitioner claims that his trial counsel was ineffective in his investigation into a potentially exculpatory witness and in advising the petitioner regarding the strength of the state's case. Specifically, he contends that his counsel did not inform him of the recantation of an eyewitness' statement and did not interview a potentially exculpatory witness. The respondent argues that the petitioner cannot make a showing that his trial counsel's investigation or advice were ineffective. We agree with the respondent.

The court's finding that trial counsel adequately investigated this case is supported by the record. The court found that the testimony of the petitioner was not very credible and that the testimony of trial counsel was much more credible. The testimony before the habeas court was clear that the petitioner was made aware of and fully advised about an eyewitness' statement to the police and his subsequent affidavit recanting that statement. Thus, counsel's representation was well within the range of what competent attorneys would do in this situation.

The petitioner could not show prejudice from trial counsel's decision not to investigate what the petitioner claimed was an exculpatory witness. The petitioner offered the only testimony regarding the existence of an exculpatory witness, which the habeas court properly found was insufficient to show prejudice because there was no opportunity to evaluate the testimony or credibility of the claimed witness. See Taft v. Commissioner of Correction, 47 Conn.App. 499, 504-505, 703 A.2d 1184 (1998).

B

The petitioner also claims that his trial counsel was ineffective in failing to advise him of his right to appeal from the denial of his motion to withdraw the guilty plea. Because there were no nonfrivolous grounds on which to appeal and there was no showing that the petitioner requested information regarding his appeal options, trial counsel was not ineffective in failing to advise the petitioner of his appellate rights.

"There is no constitutional mandate that to provide reasonably competent assistance, defense counsel always must inform a criminal defendant of the right to appeal from the judgment rendered after the acceptance of a guilty plea. Ghant v. Commissioner of Correction, 255 Conn. 1, 9, 761 A.2d 740 (2000). Instead, counsel has a constitutional obligation to advise a defendant of appeal rights when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." (Internal quotation marks omitted.) King v. Commissioner of Correction, 73 Conn.App. 600, 604-605, 808 A.2d 1166 (2002), cert. denied, 262 Conn. 931, 815 A.2d 133 (2003). "[T]o show prejudice [when counsel fails to apprise a defendant of his or her appellate rights], a defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed." (...