Falcon v. Commissioner of Correction

• Decision Date: 07 November 2006
• Docket Number: No. 26906.,26906.
• Citation: 98 Conn.App. 356,908 A.2d 1130
• Court: Connecticut Court of Appeals
• Parties: Damon FALCON v. COMMISSIONER OF CORRECTION.

908 A.2d 1130

98 Conn.App. 356

Damon FALCON v. COMMISSIONER OF CORRECTION.

No. 26906.

Appellate Court of Connecticut.

Argued September 19, 2006.

Decided November 7, 2006.

James M. Fox, special public defender, for the appellant (petitioner).

Gerard P. Eisenman, senior assistant state's attorney, for the appellee (respondent).

SCHALLER, DiPENTIMA and LAVINE, Js.

PER CURIAM.

The petitioner, Damon Falcon, appeals from the judgment of the habeas court, White, J., dismissing his petition for a writ of habeas corpus following the denial of his petition for certification to appeal from that judgment. On appeal, the petitioner claims that the court abused its discretion when it concluded that he was not denied the effective assistance of counsel. We dismiss the appeal.

The petitioner pleaded guilty to four crimes alleged in two separate informations¹ and was given an effective sentence of twenty years in prison and ten years of special parole pursuant to a plea agreement.² The charges arose from the petitioner's March, 1999 attack on his former girlfriend and his April, 1999 shooting of her new companion, severing the victim's spinal cord.³ Prior to sentencing, the petitioner filed a motion to withdraw his guilty pleas, arguing that the agreed on sentence was too harsh.⁴ The trial court, Thim, J., denied the motion to withdraw the guilty pleas and sentenced the petitioner as agreed.⁵

In his amended petition for a writ of habeas corpus, the petitioner alleged that he received the ineffective assistance of counsel under the federal constitution when his counsel failed (1) to inform him that the victim was no longer a paraplegic and (2) to ensure that the petitioner voluntarily had pleaded guilty to the crimes with which he was charged. Judge White found that the petitioner had failed to prove that his counsel performed deficiently or that there is a reasonable likelihood that the petitioner would have insisted on going to trial or that he would have prevailed at trial. Judge White noted that Judge Thim had reviewed the elements of the crime of assault in the first degree at the time the petitioner pleaded guilty and that an essential element of assault in the first degree is serious physical injury, not paraplegia or paralysis. The court found, pursuant to its review of the plea canvass, that Judge Thim made the terms of the agreed sentence quite clear, and that the petitioner indicated that he was pleading guilty voluntarily and that he understood the total effective sentence.

"In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, our review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary. . . . Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. . . .

"To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.... For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel's performance was deficient and that there is a reasonable probability that, but for the counsel's mistakes, the result of the proceedings would have been different." (Internal quotation marks omitted.) Anderson v. Commissioner of Correction, 83 Conn.App. 595, 597, 850 A.2d 1063, cert. denied, 271 Conn. 905, 859 A.2d 560 (2004); see also Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Bunkley v. Commissioner of Correction, 222 Conn. 444, 445, 610 A.2d 598 (1992).

"For ineffectiveness claims resulting from guilty pleas, we apply the standard set forth in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). . . . To satisfy the prejudice prong, the petitioner must show a reasonable probability that, but for counsel's error, he would not have pleaded guilty and would have insisted on going to trial." (Internal quotation marks omitted.) Hernandez v. Commissioner of Correction, 82 Conn.App. 701, 706, 846 A.2d 889 (2004).

We have reviewed the transcripts of Judge Thim's thorough plea canvass⁶ and his ruling on the motion to withdraw, the parties' briefs and listened to their arguments on appeal.⁷ We conclude that Judge White did not abuse his discretion in denying the petition for certification to appeal. The issues presented are not debatable among jurists of reason, a court could not resolve the issues in a different manner and the questions are not adequate to deserve encouragement to proceed further. See Owens v. Commissioner of Correction, 63 Conn.App. 829, 831, 779 A.2d 165, cert. denied, 258 Conn. 905, 782 A.2d 138 (2001).

The appeal is dismissed.

1. The petitioner pleaded guilty to assault in the first degree in violation of General Statutes § 53a-59 (a)(1), burglary in the first degree in violation of General Statutes § 53a-101 (a)(1), assault in the third degree in violation of General Statutes § 53a-61(a)(1) and unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a).

2. The...