Franko v. Comm'r of Corr.

• Decision Date: 17 May 2016
• Docket Number: AC 37490
• Court: Connecticut Court of Appeals
• Parties: LAWRENCE FRANKO v. COMMISSIONER OF CORRECTION

LAWRENCE FRANKO v. COMMISSIONER OF CORRECTION

AC 37490

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued February 4, 2016

May 17, 2016

Alvord, Sheldon and Keller, Js.

(Appeal from Superior Court, judicial district of Tolland, Sferrazza, J.)

Wade Luckett, assigned counsel, with whom, on the brief, was Walter C. Bansley IV, assigned counsel, for the appellant (petitioner).

Nancy L. Chupak, senior assistant state's attorney, with whom, on the brief, were Richard J. Colangelo, Jr., state's attorney, and Kelly A. Masi, senior assistant state's attorney, for the appellee (respondent).

Opinion

KELLER, J. Upon a grant of certification to appeal, the petitioner, Lawrence Franko, appeals from the judgment of the habeas court denying his third amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court's judgment should be reversed because that court erred by concluding that the petitioner's trial counsel, Attorneys Henry Becker and Thomas Moore,¹ did not render ineffective assistance on the basis of their decision not to seek a jury instruction on the lesser included criminal offenses of unlawful restraint in either the first or second degree. We affirm the judgment of the habeas court.

The following procedural history and facts are relevant to this appeal. In 2010, following a jury trial, the petitioner was convicted of kidnapping in the second degree in violation of General Statutes § 53a-94.² The petitioner was thereafter sentenced to serve sixteen years in prison, followed by four years of special parole.³

This court, in affirming the petitioner's conviction on direct appeal, stated that the jury reasonably could have found the following facts pertaining to the underlying crime. "On November 10, 2008, the victim was packing groceries into her vehicle, which was parked in the parking lot of a Stamford grocery store. After the victim entered her vehicle, shut the door and started the vehicle, the [petitioner], who had a prior relationship with the victim, opened the vehicle's door and pushed the victim between the passenger's and driver's seats. The victim's keys to the vehicle were knocked out of the ignition during the victim's initial struggle with the [petitioner], but the [petitioner] then started the vehicle with another key. The victim pushed the horn of her car in an attempt to draw attention to the situation. The [petitioner] grabbed the victim's hair and hit her face against the dashboard, which caused the victim to bleed.

"He then held the victim's head down as he drove her vehicle on the Merritt Parkway, in the direction of the [petitioner's] residence. The victim, in an attempt to escape the vehicle, persuaded the [petitioner] to pull into a rest stop for gas. The [petitioner] pulled into the New Canaan rest area, which included a gas station, and parked the vehicle, but, after the [petitioner] decided the rest area was 'not the right place to talk,' he began to drive the vehicle in reverse in order to exit the rest area. Trying to prevent the victim from exiting the vehicle, the [petitioner] grabbed the victim's belt and pants, until her pants ripped at the crotch area. The victim successfully escaped the vehicle and ran to the gas station. The victim called 911 on her cell phone and also requested that the gas station attendant call 911 . . . . The [petitioner] ran into the woods, behind the rest area, before state police arrived in response tothe 911 calls.

"Officer Glen Coppola of the Stamford police department . . . was dispatched to the rest area to meet with the victim. The victim subsequently followed Coppola to the special victims unit of the department. When the victim arrived at the department, she met with Sergeant Christian DiCarlo, who noted facial bruising, scratches around the victim's eyes and the fact that her jeans were torn. DiCarlo took the victim's statement and photographed the extent of her injuries. Later that night, the [petitioner] surrendered to the department and was arrested on the charge of kidnapping in the second degree, of which he ultimately was convicted." State v. Franko, 142 Conn. App. 451, 453-55, 64 A.3d 807, cert. denied, 310 Conn. 901, 75 A.3d 30 (2013).

The petitioner filed an initial petition for a writ of habeas corpus on April 13, 2011. He thereafter filed an amended petition on April 16, 2014, a second amended petition on May 27, 2014, and a third amended petition on July 30, 2014. In the third amended petition, amongst several other claims, the petitioner claimed that he received ineffective assistance of counsel during his criminal trial because his trial counsel did not request a jury instruction on the lesser included offenses of unlawful restraint in the first degree, unlawful restraint in the second degree, or assault in the third degree.

The respondent, the Commissioner of Correction, denied the substance of all of the petitioner's claims in a return filed on August 4, 2014. On November 20, 2014, the court, Sferrazza, J., held a habeas trial, during which the petitioner presented documentary and testimonial evidence. Relevant to the issue on appeal, the petitioner presented his own testimony, as well as the testimony of Attorney Robert McKay, a Connecticut criminal defense attorney, and Attorney Maureen Ornousky, the prosecutor who handled the petitioner's criminal trial. On December 4, 2014, the court issued a memorandum of decision wherein it denied the petitioner's amended petition. In the court's memorandum of decision, it determined, inter alia, that the petitioner had failed to show ineffective assistance based upon his trial counsel's choice not to seek a lesser included offense instruction on unlawful restraint in either the first or second degree.⁴ The habeas court also found that the petitioner had failed to prove prejudice in accordance with Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), as a result of his trial counsel's failure to request a lesser included offense instruction. Most notably, the court found that the record demonstrated "ample evidence justifying proof of all the elements of kidnapping [in the] second degree" and that the jury was presumed to have acted in accordance with the trial court's proper instructions as to the crime charged.

The petitioner sought certification to appeal to thiscourt on December 10, 2014, which the habeas court granted on December 11, 2014.⁵ This appeal followed. Additional facts will be set forth as necessary.

We begin by setting forth the appropriate standard of review. "The standard to be applied . . . in determining whether an attorney effectively represented a criminal defendant is set forth in Strickland v. Washington, [supra, 466 U.S. 668] . . . . 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." (Internal quotation marks omitted.) Carey v. Commissioner of Correction, 86 Conn. App. 180, 182, 860 A.2d 776 (2004), cert. denied, 272 Conn. 915, 866 A.2d 1283 (2005).

"In an appeal from the denial of a habeas writ, the burden imposed upon the petitioner is higher than that imposed on him in a direct appeal. In order to succeed in a claim of ineffective assistance of counsel, the 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. . . . A reviewing court can find against the petitioner on whichever ground is easier." (Citations omitted; internal quotation marks omitted.) Walton v. Commissioner of Correction, 57 Conn. App. 511, 517-18, 749 A.2d 666, cert. denied, 254 Conn. 913, 759 A.2d 509 (2000).

"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. . . . 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; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . [C]ounsel is strongly presumed to have rendered adequateassistance and made all significant decisions in the exercise of reasonable professional judgment." (Citations omitted; internal quotation marks omitted.) Strickland v. Washington, supra, 466 U.S. 689-90; accord Bova v. Warden, Superior Court, judicial district of New Haven, Docket No. CV-99-0423653-S, 2004 WL 2222568, *2 (September 1, 2004), aff'd, 95 Conn. App. 129, 894 A.2d 1067, cert. denied, 278 Conn. 920, 901 A.2d 43 (2006). "This court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous. . . . [T]he habeas judge is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony." (Internal quotation marks omitted.) Minor v. Commissioner of...