Abrams v. Comm'r of Corr.

• Citation: 218 A.3d 729,192 Conn.App. 850
• Decision Date: 17 September 2019
• Docket Number: AC 40719
• Court: Appellate Court of Connecticut
• Parties: David A. ABRAMS v. COMMISSIONER OF CORRECTION

192 Conn.App. 850

218 A.3d 729

David A. ABRAMS

v.COMMISSIONER OF CORRECTION

AC 40719

Appellate Court of Connecticut.

Argued May 29, 2019

Officially released September 17, 2019

Judie Marshall, with whom, on the brief, was Walter C. Bansley IV, New Haven, for the appellant (petitioner).

Sarah Hanna, assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky, state's attorney, and Jo Anne Sulik, supervisory assistant state's attorney, for the appellee (respondent).

Keller, Bright and Devlin, Js.

DEVLIN, J.

The petitioner, David A. Abrams,¹ appeals, following the granting of his certification to appeal, from the judgment of the habeas court denying his fourth petition for a writ of habeas corpus. He claims that counsel who represented him in the appeal taken from the denial of his first petition for a writ of habeas corpus, John C. Drapp, rendered ineffective assistance by withdrawing the appeal pursuant to Practice Book § 63-9.² On appeal, the petitioner asserts that the habeas court erred in concluding that Drapp did not render ineffective assistance by withdrawing the appeal at the petitioner's direction because his decision to withdraw the appeal was based on Drapp's poor advice.³ We disagree and, accordingly, affirm the judgment of the habeas court.

The following procedural history and facts, as found by the habeas court, are relevant to this appeal. The petitioner was convicted, following a jury trial, of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), assault in the first degree in violation of General Statutes § 53a-59 (a) (1), and criminal possession of a firearm in violation of General Statutes § 53a-217. The petitioner's sentence was enhanced pursuant to General Statutes § 53-202k based on the finding that he committed a class B felony with a firearm. On December 7, 2011, the petitioner was sentenced to a total effective sentence of fifty-one years of incarceration, followed by nine years of special parole.⁴ The petitioner subsequently appealed to this court, which affirmed the judgment of the trial court and determined that the jury reasonably could have found the following facts:

"The [petitioner] and the victim, Jacqueline Peton, were involved in a sometimes volatile, live-in relationship from December, 1994, until August, 2000, during which time they had a child. Prior to the relationship ending, the victim called the Danbury police in August, 2000, claiming that the [petitioner] had violated the restraining order that she had obtained against him living with her. At that time, to give the victim ‘a taste of her own medicine,’ the [petitioner] called her employer and reported that she was stealing cleaning products at work and selling them.

"On November 1, 2000, the [petitioner] went to the victim's apartment to see his son. When the victim did not allow him into her apartment, the [petitioner] threatened to kill her and stated that he was going to report her to the department of children and families for child abuse. During the early evening hours of November 3, 2000, the [petitioner] and the victim had an argument during a telephone conversation. After the victim hung up, the [petitioner] repeatedly called her telephone number. Despite the [petitioner]'s objections, she went out that night with Ricky Cordiero. At approximately 5 a.m. on November 4, 2000, the victim returned to her apartment complex and observed the [petitioner] sitting in his vehicle, a black Chrysler sedan with custom wheel rims. As the victim walked toward her building, the [petitioner] ran to her with a gun in his hand and grabbed her. When she escaped, the [petitioner] circled her and fired a series of shots at her, wounding her in the leg, elbow and buttocks. After the [petitioner]'s gun jammed, as he left the scene, he told the victim, ‘I'm going to get you. I'm going to have somebody f*cking kill you.’ " State v. Abrahams , 79 Conn. App. 767, 769–70, 831 A.2d 299 (2003).

The petitioner filed his first amended petition for a writ of habeas corpus on September 17, 2003, in which he asserted twenty-three claims of ineffective assistance of trial counsel, Joseph Romanello. The petition was denied by the habeas court in a memorandum of decision issued February 28, 2005.

The petitioner filed an appeal from the denial of his first habeas petition on August 3, 2005, wherein he was represented by Drapp. Drapp submitted a brief to the Appellate Court on February 22, 2006, in which he raised the following issue: "Did the habeas trial court err in finding that the petitioner received effective assistance of counsel at the sentencing hearing on the underlying criminal charges?" More specifically, the petitioner claimed that the habeas court erred in not finding that his trial counsel was ineffective for failing to take any action to stop the petitioner's verbal assault of the victim, the judge, the prosecutor and his own trial counsel during allocution at sentencing. Drapp also filed a reply brief for the case on August 9, 2006, and the case was "marked ready" on the same date. On September 26, 2006, Drapp withdrew the appeal pursuant to Practice Book § 63-9, indicating on the required form that he was withdrawing "as a result of some activity before the case was assigned to the settlement program." (Emphasis omitted.)

Prior to the withdrawal of the appeal from the denial of his first habeas petition, the petitioner had filed a second petition for a writ of habeas corpus, in which he was represented by Attorney Salvatore Adamo. This second habeas petition was denied in a memorandum of decision dated April 7, 2008; Abrams v. Warden, State Prison , Superior Court, judicial district of Tolland, Docket No. CV-04-4000112-S, 2008 WL 1823047 (April 7, 2008) ; and the appeal was dismissed by this court on February 16, 2010. Abrams v. Commissioner of Correction , 119 Conn. App. 414, 987 A.2d 370, cert. denied, 295 Conn. 920, 991 A.2d 564 (2010). The petitioner's third habeas petition, in which he was represented by Attorney Justine Miller, was also denied by the habeas court; Abrams v. Commissioner of Correction , Superior Court, judicial district of Tolland, Docket No. CV-10-4003316-S, 2012 WL 5992687 (November 13, 2012) ; and the appeal was subsequently dismissed by this court on April 8, 2014. Abrams v. Commissioner of Correction , 149 Conn. App. 903, 87 A.3d 631, cert. denied, 312 Conn. 905, 93 A.2d 157 (2014). Neither the petitioner's second nor third habeas petitions alleged that Drapp was ineffective for withdrawing the first habeas appeal.

In his amended petition in the present case, the petitioner alleged that Drapp rendered ineffective assistance by withdrawing the appeal taken from the denial of his first habeas petition and that subsequent habeas counsel, Adamo and Miller, also rendered ineffective assistance of counsel by failing to raise a claim regarding Drapp's ineffectiveness, as a result of his withdrawal of the appeal in the first habeas petition, in the second and third habeas petitions, respectively. At the trial on the underlying habeas petition, Drapp testified that he represented the petitioner in the appeal from the denial of his first habeas petition. Based on his review of the pleadings, the evidence presented at the first habeas trial, the habeas court's decision, and appropriate legal research, he determined that he would raise one issue on appeal, namely, that the habeas court had erred in concluding that the petitioner's trial counsel did not render ineffective assistance at the petitioner's sentencing.

Prior to oral argument, Drapp received a letter from the petitioner stating that he wished to withdraw the appeal. Drapp, however, could not recall some eleven years later what the petitioner's stated reason was in the letter for his request to withdraw the appeal. After receiving the letter, Drapp spoke with the petitioner about the request. Although he could not remember the details of the conversation, Drapp testified that he was certain that they would have discussed his reasons for requesting the withdrawal and also believed that he would have advised the petitioner that it was against his interests to withdraw the appeal.

The petitioner then testified as to his recollection of the events at issue. He agreed that Drapp visited him at the correctional institution where he was housed to discuss the letter before withdrawing the appeal. During the meeting, the petitioner expressed his concern that Drapp had elected to raise only one issue on appeal when twenty-three issues had been litigated at the habeas trial. In response to the petitioner's concerns, Drapp stated that the only issue that was preserved for appeal was the one that he had raised in his brief. The petitioner then informed Drapp that the brief he had prepared was "garbage" and that the issue he had chosen to pursue was not a winnable one. Drapp replied that the only option, rather than go forward on the one issue as briefed, would be to withdraw the appeal and proceed with his second habeas corpus petition against Attorney Bruce McIntyre, the petitioner's first habeas attorney. The petitioner, believing that he could not win on the appeal as it was briefed and wanting to avoid any further delay in litigation, directed Drapp to withdraw the appeal in subsequent correspondence.

The petitioner testified that, during their conversation about withdrawing the appeal, Drapp never informed him that he could proceed as a self-represented party and, therefore, he believed his only option was to proceed with the appeal as briefed or to withdraw. He further asserted that, had Drapp explained that he had the right to proceed as self-represented, he would have done so because he had represented himself in the past. Finally, the petitioner testified that he discussed with both Adamo and Miller raising a claim of ineffective assistance by Drapp based on his withdrawal of the appeal, but neither counsel raised...