Carey v. Commissioner of Correction, (AC 24655).

• Decision Date: 23 November 2004
• Docket Number: (AC 24655).
• Citation: 86 Conn. App. 180,860 A.2d 776
• Court: Connecticut Court of Appeals
• Parties: CHARLES CAREY v. COMMISSIONER OF CORRECTION

86 Conn. App. 180

860 A.2d 776

CHARLES CAREY v. COMMISSIONER OF CORRECTION

(AC 24655).

Appellate Court of Connecticut.

Argued September 17, 2004.

Officially released November 23, 2004.

Schaller, West and Hennessy, Js.

Kirstin B. Coffin, special public defender, for the appellant (petitioner).

Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Christopher L. Morano, chief state's attorney, and Angela R. Macchiarulo, senior assistant state's attorney, for the appellee (respondent).

Opinion

HENNESSY, J.

This is an appeal from the judgment denying a petition for a writ of habeas corpus filed by the petitioner, Charles Carey. On appeal, the petitioner claims that the habeas court improperly found that: (1) he received effective assistance of counsel and (2) his Alford¹ plea was made in a knowing, voluntary and intelligent manner.² We affirm the judgment of the habeas court.

The petitioner entered a guilty plea under the doctrine enunciated in North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), to the charge of sexual assault in the first degree in violation of General Statutes § 53a-70.³ At sentencing, the petitioner moved to withdraw his guilty plea and requested that he be allowed to proceed to trial. The court denied the petitioner's motion, and sentenced the petitioner to fifteen years incarceration, execution suspended after five and one-half years, and ten years of probation. The petitioner then filed a petition for a writ of habeas corpus, alleging that his plea was not given voluntarily, and that he was denied effective assistance of counsel. Following the habeas court's dismissal of his habeas petition, the petitioner filed a petition for certification to appeal to this court, which was granted. This appeal followed.

I

The petitioner first claims that he was denied his constitutional right to effective assistance of counsel guaranteed by the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut. "The standard to be applied by habeas courts in determining whether an attorney effectively represented a criminal defendant is set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In order for a criminal defendant to prevail on a constitutional claim of ineffective assistance of counsel, he must establish both (1) deficient performance, and (2) actual prejudice.. . . Thus, he must establish not only that his counsel's performance was deficient, but that as a result thereof he suffered actual prejudice, namely, that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. . . .

"[T]he petitioner must prove: (1) that his counsel's performance fell below the required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in the criminal law; and (2) that this lack of competence contributed so significantly to his conviction as to have deprived him of a fair trial." (Citation omitted; internal quotation marks omitted.) Beasley v. Commissioner of Correction, 47 Conn. App. 253, 261, 704 A.2d 807 (1997), cert. denied, 243 Conn. 967, 707 A.2d 1268 (1998).

The petitioner specifically claims that his counsel failed (1) to investigate relevant facts,⁴ (2) to interview relevant witnesses and (3) to communicate with the petitioner.⁵ As a result of these shortcomings, the petitioner claims that his decision to enter an Alford plea instead of going to trial was not made on an informed basis. We disagree.

On the basis of the evidence presented, the habeas court found that at the time of his arrest, the state provided the petitioner with a public defender, Christopher Cosgrove, who represented the petitioner for approximately five months. During that period, Cosgrove investigated the incident and had his investigator, Lou Panico, interview the victim and other witnesses. After five months, the petitioner was required to retain private counsel, A. Thomas Waterfall. The public defender's office gave Waterfall the petitioner's file, which included all statements and reports of the investigator. The petitioner testified that he had met with Waterfall on about ten occasions and that he was made aware of his potential exposure to incarceration after a trial because of his past criminal record, the nature of the sexual assault charge and an outstanding violation of probation. The habeas court further found that the plea agreement was based upon discussions between the prosecutor and Waterfall, the details of which were conveyed to the petitioner. After being advised of his exposure if he chose to proceed to trial, the petitioner agreed to accept the sentence offered by the prosecutor in order to avoid a longer sentence.

"We cannot, in a habeas corpus appeal, disturb underlying historical facts found by the habeas court unless they are clearly erroneous. . . . The habeas court judge, as trier of the facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony." (Citation omitted.) Beasley v. Commissioner of Correction, supra, 47 Conn. App. 262. After a careful review of the record, we conclude that the habeas court properly concluded that the petitioner did not establish (1) that his counsel's performance fell below the standard of reasonable competence exhibited by lawyers with ordinary training and skill in criminal law and (2) that there was a reasonable probability that but for his counsel's performance the petitioner would not have pleaded guilty and would have insisted on going to trial. Accordingly, the petitioner's claim of ineffective assistance of counsel must fail.

II

The petitioner next claims that the habeas court improperly determined that his guilty plea was knowingly and voluntarily given. Specifically, the petitioner argues that at the time of the plea he was under the influence of medication.⁶ We disagree.

The following facts pertain to the claim that the petitioner's plea was involuntary. At the time of sentencing, the petitioner moved to withdraw his plea and requested that he be allowed to proceed to trial. He claimed that on the day he pleaded guilty, he had taken medication to alleviate pain in his leg and that the medication caused him to...