Brown v. Commissioner of Correction

• Decision Date: 22 November 2005
• Docket Number: No. 24714.,24714.
• Citation: 92 Conn.App. 382,885 A.2d 761
• Court: Connecticut Court of Appeals
• Parties: Judson BROWN v. COMMISSIONER OF CORRECTION.

885 A.2d 761

92 Conn.App. 382

Judson BROWN v. COMMISSIONER OF CORRECTION.

No. 24714.

Appellate Court of Connecticut.

Argued September 13, 2005.

Decided November 22, 2005.

Sheila A. Huddleston, special public defender, for the appellant (petitioner).

James A. Killen, 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).

FLYNN, DiPENTIMA and HARPER, Js.

DiPENTIMA, J.

The petitioner, Judson Brown, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. The court granted his petition for certification to appeal. On appeal, the petitioner claims that the court improperly concluded that he was not deprived of the effective assistance of counsel because of the alleged failure of his public defenders to ensure that he received his file promptly following their withdrawal from his criminal case.¹ We affirm the judgment of the habeas court.

Prior to discussing the factual and procedural history relevant to our disposition of the petitioner's appeal, we set forth the standard by which we review the habeas court's findings of fact. "The underlying historical facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . Historical facts constitute a recital of external events and the credibility of their narrators. So-called mixed questions of fact and law, which require the application of a legal standard to the historical-fact determinations, are not facts in this sense. . . . Whether the representation a defendant received . . . 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." (Citations omitted; internal quotation marks omitted.) Copas v. Commissioner of Correction, 234 Conn. 139, 152-53, 662 A.2d 718 (1995).

Although we conduct a plenary review of the record, to prevail on his claim of ineffective assistance of counsel, the petitioner "must show that counsel's assistance was so defective as to require reversal of [the] conviction." (Internal quotation marks omitted.) Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 798, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied sub nom. Toccaline v. Lantz, ___ U.S. ___, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004). As the United States Supreme Court stated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), proof of ineffective assistance of counsel requires a showing by the petitioner in two parts: (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense. In order to prove that counsel was deficient, however, it is not enough for the petitioner to claim that counsel made mistakes or to argue that counsel should have pursued another tactic. Rather, the petitioner must show "that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id.

Our focus in the present case is on the first prong of the Strickland test.² To meet that prong, "the petitioner must first establish that his attorney's performance was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law . . . . The court must be mindful that [a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. . . ." (Citation omitted; internal quotation marks omitted.) Lewis v. Commissioner of Correction, 89 Conn.App. 850, 855-56, 877 A.2d 11, cert. denied, 275 Conn. 905, 882 A.2d 672 (2005).

With that standard of review in mind, we now consider the following facts and procedural history. In October, 1996, the petitioner was arrested and charged in connection with an arson committed that August.³ He initially claimed indigence and requested a public defender. Two public defenders filed appearances on behalf of the petitioner, one in December, 1996, and the second, which was in addition to the first, in October, 1998. On November 12, 1998, the state filed a motion for judicial determination of eligibility for public defender services. The following day, in response to the state's motion and on the basis of information discovered in conjunction with their preparation to defend the petitioner against incidents of uncharged misconduct the state sought to introduce at trial, the public defenders filed a motion to withdraw, having determined that the petitioner no longer qualified for public defender services.⁴ Although jury selection was scheduled to begin at about the time those motions were filed, the petitioner's public defenders represented that they believed that in the event their motion to withdraw was granted, the court would grant the petitioner a continuance so as to allow him to retain private counsel.⁵ On November 16, 1998, the court granted the motion to withdraw. The petitioner did not challenge that ruling and, on December 11, 1998, filed a pro se appearance. The petitioner's criminal trial began in May, 1999.

The petitioner did not obtain his file from his public defenders prior to the commencement of trial. At the habeas trial, the petitioner testified that he had requested his file on numerous occasions, both orally and in writing, from his public defenders. The petitioner, however, was unable to produce any evidence of his requests, and the habeas court found more credible the testimony of one of his public defenders, who testified that no direct request had been made.⁶ The public defender testified that she had told the petitioner that his file was available and that, if he had private counsel, the file was in the public defender's office and the attorney could obtain the file. She further testified that the petitioner never requested his file from the public defenders, even after he had filed his pro se appearance.

On May 17, 1999, when the court was handling a variety of pretrial matters in the petitioner's case, the issue of the petitioner's witness list arose. The petitioner represented to the court that he did not have a complete list of potential witnesses because his public defenders had compiled that list during their representation of him and he had not obtained that list since the time of their withdrawal. On the following day, the petitioner represented to the court that the public defender's office was preparing to relinquish his file to him and that he expected to obtain his file that afternoon. He actually obtained the majority of his file at about that time, with several enlarged photographs being delivered during the trial itself.⁷

In order to assess the petitioner's claim, it is necessary to understand what the petitioner is not claiming. The petitioner is not claiming that his counsel's performance was deficient because they withdrew from his case, and he is not claiming that counsel's performance was deficient because they failed to release his file to him upon his request. Rather, the petitioner's sole claim is that his counsel's performance was deficient because they failed to tell him explicitly that he...