Zillo v. Comm'r of Corr., AC 41330

195 Conn.App. 71

223 A.3d 818

Geovanny ZILLO

v.COMMISSIONER OF CORRECTION

AC 41330

Appellate Court of Connecticut.

Argued September 23, 2019

Officially released December 31, 2019

Michael W. Brown, for the appellant (petitioner).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Eva Lenczewski, supervisory assistant state's attorney, for the appellee (state).

Keller, Elgo and Bishop, Js.

BISHOP, J.

The petitioner, Geovanny Zillo, appeals from the judgment of the habeas court denying his revised amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court (1) abused its discretion by denying his request to "unwithdraw" a claim and present medical evidence regarding his genitals, (2) improperly concluded that he was not denied the effective assistance of trial counsel, and (3) improperly concluded that he was not denied the effective assistance of appellate counsel. We conclude that the habeas court did not have subject matter jurisdiction over the third claim and dismiss that portion of the appeal.¹ We affirm the judgment of the habeas court as to the remaining two claims.

The following facts and procedural history are relevant to our resolution of the petitioner's appeal. In 2009, following a jury trial, the petitioner was convicted of three counts of sexual assault in the first degree, one count of attempt to commit sexual assault in the first degree, and four counts of risk of injury to a child. State v. Zillo , 124 Conn. App. 690, 691, 5 A.3d 996 (2010). The petitioner received a total effective sentence of thirty years of imprisonment, execution suspended after fifteen years, with fifteen years of probation. Id., at 693, 5 A.3d 996. This court's opinion in the petitioner's direct appeal sets forth the following facts:

"The family of the eleven year

old victim in this case, all of whom emigrated to the United States from China, owned a Chinese restaurant that the [petitioner] frequented during 1998 and early 1999. During this time, the [petitioner] became friendly with the victim and her family, often assisting the children with their homework and with the English language. The [petitioner] was invited to family gatherings and holiday celebrations, and he purchased several gifts for the family, including a computer for the children and a $500 translator. The victim's parents eventually became concerned about the attention that the [petitioner] was showing the victim, especially his attempts to speak with her privately, and the family told the [petitioner] that he no longer was welcome at the restaurant. Accordingly, the [petitioner] stopped going to the restaurant.

"After the [petitioner] stopped going to the restaurant, he began to follow the victim and to pick her up as she waited for the bus to take her to school. The [petitioner] would take the victim to a house where he would sexually assault her. He also took her to a wooded area to take photographs of her, and he took her to a McDonald's restaurant. The victim testified that the [petitioner], whom she called G-Bunny, repeatedly sexually assaulted her when she was eleven years old. The [petitioner] made the victim remove her clothing, kissed her breasts, performed oral sex on her, digitally penetrated her vagina and her anus, licked her anus, made her hold his erect penis in her hand, made her urinate into his mouth so that he could taste her urine to see if it was as ‘sweet’ as she and attempted to make her perform oral sex on him. The [petitioner] instructed the victim not to tell anyone about his behavior, and he told her that he wanted to marry her. He also gave her money.

"In 2005 or 2006, the [petitioner] established an account on the social website Myspace.com (MySpace) using the name AnnaLuckyOne, where he purported

to be an Asian female and included a photograph of an unknown Asian female on his profile. He soon contacted the victim, who also had a MySpace account, and he attempted to establish a relationship with the victim by telling her that he was a young Asian girl. The [petitioner], acting as this young Asian girl, subsequently told the victim that the [petitioner] was AnnaLuckyOne's friend and asked if she would be willing to resume a friendship with him. Suspicious that her new friend really was the [petitioner] and not another young Asian female, the victim panicked and went to see her school counselor and her dormitory parent in whom she confided that the [petitioner] previously had sexually assaulted her. Soon thereafter, the victim filed a police report, and a warrant was issued for the [petitioner]'s arrest. The [petitioner] was tried on eight counts as set forth earlier in this opinion; he elected to be tried by a jury.

"The jury found the [petitioner] guilty on all eight counts as charged. The court accepted the jury's verdict and sentenced the [petitioner] to a total effective term of thirty years imprisonment, execution suspended after fifteen years, with fifteen years of probation." (Footnotes omitted.) Id., at 692–93, 5 A.3d 996. The petitioner appealed his conviction to this court, which affirmed the judgment of the trial court.² Id., at 706, 5 A.3d 996.

Shortly thereafter, the petitioner, acting as a self-represented party, filed a petition for a writ of habeas corpus and, after counsel had been appointed, he subsequently filed a revised amended petition for a writ of habeas corpus (revised amended petition). During the habeas trial, the petitioner asserted twelve claims that his criminal trial defense counsel, Attorney Jerry Attanasio, had provided ineffective assistance during his underlying criminal trial, as well as an ineffective assistance claim against his appellate counsel which, as previously noted, is not properly before this court. The habeas court denied all of the petitioner's claims. The petitioner filed a petition for certification to appeal the denial of his revised amended petition, which the court granted. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The petitioner first claims that the habeas court abused its discretion by (1) denying his request to "unwithdraw" a claim that he raised in his habeas petition that defense counsel rendered deficient performance by failing to present evidence related to a medical condition of his genitals that would have been crucial to his defense and (2) excluding evidence related to his medical condition and making adverse findings based upon the evidence that the petitioner sought to rebut with the medical evidence. We disagree.

A

We first address the petitioner's claim that the court abused its discretion by denying his request to "unwithdraw" a claim concerning the features of his genitals.

More specifically, the petitioner argues that the court should have treated the request to "unwithdraw" the claim set forth in paragraph 28 (R) of his revised amended complaint as a request to amend the pleadings to conform to the evidence. We are not persuaded.

We first set forth the standard of review and applicable legal principles that guide our analysis. With regard to a withdrawn claim, "[t]he trial court may exercise its discretion ... to deny the reinstatement of a claim that has been expressly withdrawn. Only where the trial court has abused that discretion will this court order a reversal. [E]very reasonable presumption in favor of the proper exercise of the trial court's discretion will be made.... Demonstrating that the trial court has abused its discretion is a difficult task." (Citation omitted; internal quotation marks omitted.) McKnight v. Commissioner of Correction , 35 Conn. App. 762, 767–68, 646 A.2d 305, cert. denied, 231 Conn. 936, 650 A.2d 173 (1994).

The following additional procedural history is relevant to our review of the petitioner's claim. The habeas trial lasted for three days; however, the first and second days were nearly two months apart. At the beginning of the habeas trial, on October 6, 2017, the petitioner informed the court that he was withdrawing several of his claims, including the claim set forth in paragraph 28 (R) of his revised amended petition alleging that his right to effective assistance of trial counsel was violated because trial counsel's performance was deficient in that "[counsel] failed to present the testimony of John Antonucci, M.D., or other evidence of unusual features of the petitioner's genitalia ...." On the second day of trial, November 29, 2017, the petitioner requested that the court permit him to "unwithdraw" paragraph 28 (R), averring that there was information from the first day of trial that he did not expect to be presented in evidence and, as a result, he wanted to "pursue [the]

issue at least somewhat." The court denied the request to reinstate that claim, recognizing that the habeas proceeding had "already gone through ten witnesses" and that "[i]t would be very difficult to reconstruct how those witnesses would have been questioned or not questioned." Additionally, the court added that "it would be very unfair to reopen it and after we've had the attorney, trial attorney, the appellate attorney, [and] the expert witness [testify] .... [The petitioner] made the choice and sought to withdraw it."

We are not persuaded that the habeas court abused its discretion when it denied the petitioner's request to "unwithdraw" paragraph 28 (R). The court reasonably recognized that almost all witnesses already had been examined and, while not all of them would have been needed to address the claim set forth in paragraph 28 (R), it would still be unfair to recall some witnesses after their dismissal. Additionally, although the habeas court did not specifically address the issue of time, we are cognizant of the fact that the trial already had spanned two months. To resurrect a claim would require additional preparation and time to explore that claim with the previous witnesses. Fur...