Gudino v. Comm'r of Corr.

• Decision Date: 16 July 2019
• Docket Number: AC 40696
• Citation: 214 A.3d 383,191 Conn.App. 263
• Parties: Joaquin GUDINO v. COMMISSIONER OF CORRECTION
• Court: Connecticut Court of Appeals

191 Conn.App. 263

214 A.3d 383

Joaquin GUDINO

v.COMMISSIONER OF CORRECTION

AC 40696

Appellate Court of Connecticut.

Argued January 28, 2019

Officially released July 16, 2019

Andrew S. Marcucci, assigned counsel, with whom was Naomi Fetterman, for the appellant (petitioner).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Richard J. Colangelo, state's attorney, and Angela R. Macchiarulo, senior assistant state's attorney, for the appellee (respondent).

Lavine, Sheldon and Prescott, Js.^*

PRESCOTT, J.

The petitioner, Joaquin Gudino, appeals following the granting of his petition for certification to appeal from the judgment of the habeas court dismissing in part and denying in part his amended petition for a writ of habeas corpus. On appeal, the petitioner claims, among other things, that the habeas court improperly (1) dismissed count one of the amended petition alleging ineffective assistance of trial counsel on the ground that it constituted an improperly successive petition, and (2) denied count two alleging ineffective assistance of prior habeas counsel on the ground that the petitioner failed to prove that he was prejudiced by the allegedly deficient performance of both his prior habeas counsel and his trial counsel. We disagree and, accordingly, affirm the judgment of the habeas court.

The relevant procedural history and facts¹ are as follows. In 1996, the petitioner was charged with murder in violation of General Statutes § 53a-54a. The petitioner was represented in the trial court by Attorney Robert A. Skovgaard. On January 28, 1998, the petitioner entered a guilty plea to a substitute information charging him with manslaughter in the first degree with a firearm in exchange for a recommended sentence of twenty-five years of incarceration. When the petitioner entered his plea, the court, Dean, J. , indicated that its willingness to impose the recommended sentence was contingent on its review of a presentence investigation report (PSI). The case was continued for preparation of the PSI and for sentencing.

On April 24, 1998, the court informed the parties that it was unwilling to impose the recommended sentence in light of unfavorable information contained in the petitioner's PSI. Accordingly, the court permitted the petitioner to withdraw his guilty plea and to enter a plea of not guilty. Following the withdrawal of the petitioner's guilty plea, the state amended the information to reinstate the charge of murder.

A jury trial commenced on July 28, 1998. At trial, several witnesses testified that the petitioner had shot the victim. Prior to the close of evidence, the petitioner and the state reached a new plea agreement, and the petitioner pleaded guilty to murder in exchange for a recommended sentence of forty-five years of incarceration. The court, Nigro, J. , subsequently imposed the recommended sentence.

In 2000, the petitioner filed his first petition for a writ of habeas corpus. See Gudino v. Warden , Superior Court, judicial district of New Haven, Docket No. CV-00-0435107-S, 2009 WL 242314 (Conn.Super. January 7, 2009). Attorney Paul R. Kraus was appointed by the court to represent the petitioner.

On March 13, 2007, the petitioner filed a three count amended petition. Count one alleged that his trial counsel had provided ineffective assistance of counsel. Specifically, the petitioner asserted in count one that his trial counsel was ineffective because he failed (1) to seek a dismissal of the jury panel on the ground of alleged juror misconduct, (2) to advise the petitioner that he would lose his right to raise the juror misconduct issue on appeal if he pleaded guilty, and (3) to advise the petitioner about the possibility of pleading guilty conditionally in order to preserve his right to raise the juror misconduct issue on appeal. Count two alleged that the petitioner's decision to plead guilty was not knowingly, voluntarily, and intelligently made. Count three alleged that the trial court violated his due process rights by failing to declare a mistrial due to alleged juror misconduct.

A habeas trial was conducted by the court, Hon. William L. Hadden , judge trial referee. The court subsequently denied the petition and the subsequent petition for certification to appeal. This court dismissed the petitioner's appeal from the court's denial of the petition certification to appeal.

Gudino v. Commissioner of Correction , supra, 123 Conn. App. at 725, 3 A.3d 134.

On August 19, 2014, the petitioner filed his second petition for a writ of habeas corpus. It is this petition that underlies the present appeal. The habeas court, Sferrazza, J. , appointed a special public defender to represent the petitioner, who, with counsel's assistance, filed a two count amended petition, dated November 28, 2016, in which he raised claims of ineffective assistance both by his trial counsel and by his prior habeas counsel.

The petitioner alleged in count one of his amended petition that the performance of his trial counsel was constitutionally deficient in numerous ways. Many of the allegations of deficient performance centered on trial counsel's alleged failure to investigate and present to Judge Dean information regarding events leading up to the commission of the crime and the petitioner's substance abuse history, mental health, lack of education, learning disabilities, and upbringing, that, according to the petitioner, would have persuaded the court to impose the original recommended sentence of twenty-five years of incarceration. The petitioner alleged that there is a reasonable probability that, but for the deficient performance of trial counsel, Judge Dean would have imposed the recommended twenty-five year sentence for manslaughter in the first degree with a firearm, and, thus, the petitioner would not currently be serving a forty-five year sentence for murder. In count two of his amended petition, the petitioner alleged that his prior habeas counsel, Kraus, had rendered ineffective assistance by failing to allege that his trial counsel had provided ineffective assistance for the reasons enumerated in count one of the amended petition.

On July 7, 2017, following a trial, the second habeas court dismissed, pursuant to Practice Book § 23-29 (3),² count one of the amended petition on the ground that it did not allege any legal grounds different from those raised in his prior petition or rely on any new evidence that was not reasonably available when the prior petition was brought. Accordingly, it dismissed count one as an improper successive claim.

With respect to count two, the court denied the petitioner relief for three reasons. First, citing State v. Madera , 198 Conn. 92, 97, 503 A.2d 136 (1985), which, in turn, relied on Tollett v. Henderson , 411 U.S. 258, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973), the court concluded that the petitioner had waived any challenge to the allegedly deficient performance of his trial counsel with respect to the plea proceedings before Judge Dean by later pleading guilty to murder before Judge Nigro. The habeas court reasoned that because he had waived any claim of ineffective assistance against trial counsel, he could not establish that his prior habeas counsel was ineffective for failing to raise that claim in his prior petition.

Second, the court denied the petitioner relief on count two on the alternative ground that, even if his claims were not waived by his guilty plea to murder, the petitioner had failed to demonstrate that habeas counsel's performance was constitutionally deficient. Finally, the habeas court denied the petitioner relief on the additional alternative ground that he failed to establish that any allegedly deficient performance prejudiced the petitioner. See Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Specifically, the habeas court concluded that even if trial counsel had presented all of the information that the petitioner alleges should have been presented to Judge Dean about the commission of the crime and the petitioner's background, it was unpersuaded that Judge Dean would have imposed the recommended twenty-five year sentence.

On July 12, 2017, the habeas court granted the petition for certification to appeal. This timely appeal followed.

I

We first address the petitioner's claim that the habeas court improperly dismissed, pursuant to Practice Book § 23-29 (3), count one of his amended petition. The petitioner argues that, contrary to the conclusion of the habeas court, count one of the amended petition does not allege an improperly successive claim because it contains new factual specifications of ineffective assistance of counsel and seeks different forms of relief from those sought in his first habeas petition. According to the petitioner, the claim raised in the first count of his present petition was not improperly successive because his first habeas petition alleged ineffective assistance of trial counsel on the basis of counsel's failure to secure a dismissal of the jury panel for juror misconduct and his subsequent failure to inform the petitioner that, if he pleaded guilty, he would waive his right to challenge the court's juror misconduct ruling on appeal. The current petition, by contrast, alleges ineffective assistance of trial counsel on the basis of, among other things, counsel's failure to conduct a proper investigation and to present to Judge Dean critical information that would have persuaded the court to impose the recommended twenty-five year sentence. Alternatively, the petitioner argues that the claim in count one is not improperly successive because one of the forms of relief the petitioner seeks in the current petition with respect to count one is different from the relief sought in the prior petition. We are unpersuaded by the petitioner's arguments and, therefore, affirm the habeas court's judgment dismissing count one.

We begin our analysis by reviewing the doctrine...