Hedge v. Comm'r of Corr., 34681.

• Decision Date: 05 August 2014
• Docket Number: No. 34681.,34681.
• Citation: 97 A.3d 45,152 Conn.App. 44
• Court: Connecticut Court of Appeals
• Parties: Kareem HEDGE v. COMMISSIONER OF CORRECTION.

152 Conn.App. 44

97 A.3d 45

Kareem HEDGE

v.COMMISSIONER OF CORRECTION.

No. 34681.

Appellate Court of Connecticut.

Argued March 13, 2014.

Decided Aug. 5, 2014.

William A. Snider, assigned counsel, for the appellant (petitioner).

Adam E. Mattei, deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Craig P. Nowak, senior assistant state's attorney, for the appellee (respondent).

LAVINE, KELLER and FLYNN, Js.

KELLER, J.

The petitioner, Kareem Hedge, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court erroneously (1) determined that the petitioner's trial counsel did not have an actual conflict of interest that rendered his representation ineffective, (2) failed to examine whether the petitioner's trial counsel had a potential conflict of interest that rendered his representation ineffective, and (3) dismissed the petitioner's due process claim concerning the trial court's alleged failure to properly canvass the petitioner and to inquire into a possible conflict of interest. We affirm the judgment of the habeas court.

The following facts, as found by the habeas court, and procedural history are relevant to this appeal. On March 13, 2003, the petitioner was arrested and charged with a variety of offenses by way of a two part information.¹ Attorney Richard Silverstein's firm agreed to represent the petitioner on those charges on June 19, 2003.

Prior to his representation of the petitioner, Silverstein was arrested and charged with drug related crimes on two separate occasions. In 1999, Silverstein was arrested and charged with one or more drug offenses. Those charges were dismissed following Silverstein's completion of a diversionary program. In January, 2003, Silverstein was arrested and charged with possession of illegal drugs. The trial court granted Silverstein entry into an accelerated rehabilitation program on August 27, 2003, a supervised diversionary program that requires no admission of guilt. The charges against him were dismissed following his completion of the program.

Following Silverstein's January, 2003 arrest, the New Haven judicial district grievance panel initiated proceedings against him. On June 23, 2003, the court, Silbert, J., issued an order that required Silverstein (1) to inform his current and prospective clients in writing of the criminal charges presently pending against him, and (2) to inform his clients in writing in any case in which he was counsel of record that proceeded to jury selection, that the clients could require him to disclose to prospective jurors during voir dire the pendency of his own criminal charges.²

Despite Judge Silbert's order, Silverstein failed to provide any notice to the petitioner regarding Silverstein's pending criminal charges. During a pretrial hearing on the eve of jury selection in January, 2004, the petitioner informed the court that he had learned earlier that day of the charges pending against Silverstein and expressed concern about retaining Silverstein as his counsel. The court explained to the petitioner that he could require Silverstein to inform prospective jurors during voir dire of the charges pending against him. ³ The petitioner made no such request at any time before or during voir dire, although Silverstein did inquire generally before individual voir dire whether any prospective juror knew of him. No eventual juror acknowledged recognizing Silverstein.

A jury found the petitioner guilty of all the charges alleged in the first part of the information on January 27, 2004, and the court sentenced the petitioner to a total effective sentence of twenty-three years incarceration on April 2, 2004. Following a trial to the court on the charge in the second part of the information, the court sentenced the petitioner to five years incarceration, which was to run concurrently with the twenty-three year sentence on October 21, 2004. This court affirmed the trial court's judgment on appeal. State v. Hedge, 93 Conn.App. 693, 695, 890 A.2d 612, cert. denied, 277 Conn. 930, 896 A.2d 102 (2006).

On December 12, 2011, the petitioner filed the fourth amended petition for a writ of habeas corpus, which is at issue in this appeal.⁴ The amended petition contains four counts. Count one alleges that Silverstein provided ineffective assistance of counsel by failing to abide by Judge Silbert's order and having an actual conflict of interest. Count two alleges that Silverstein provided ineffective assistance of counsel due to inadequate trial preparation and performance. Count three alleges that the trial court violated the petitioner's due process rights by failing to inquire into the possibility that Silverstein had a conflict of interest and to canvass the petitioner regarding Silverstein's prior arrests, possible conflict of interest, and Judge Silbert's order. Count four alleges that the petitioner's appellate counsel provided ineffective assistance of counsel due to his failure to raise certain claims in the petitioner'sdirect appeal. The respondent, the Commissioner of Correction, filed a return to the petition on October 17, 2011, denying the petitioner's allegations and raising the special defense of procedural default with regard to the petitioner's claims in counts one and two.⁵

Following a trial to the court, the habeas court issued a comprehensive and well reasoned memorandum of decision denying the petition on April 27, 2012. First, the court determined that Silverstein did not have a conflict of interest which rendered his assistance ineffective because (1) Silverstein was not convicted of the crimes charged against him, (2) the publicity surrounding Silverstein's 2003 arrest and the court's granting of his entry into accelerated rehabilitation was minimal and transitory, (3) Silverstein's arrest occurred in New Haven and the petitioner's trial took place in Bridgeport, a city in which Silverstein had no significant reputation and to which he had no connection, and (4) the trial court had informed the petitioner that he could compel Silverstein to inquire whether prospective jurors had knowledge of his pending legal issues. Although the court found that Silverstein failed to follow Judge Silbert's order, the court determined that the breach of his ethical duty to the court did not give rise to the creation of a conflict of interest in representing the petitioner in this case. Second, the court determined that the petitioner failed to submit sufficient evidence to prove that Silverstein's trial preparation and performance prejudiced the petitioner or fell below the standard of care required under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Third, the court determined that, because there was no conflict of interest between the petitioner and Silverstein, the trial court did not err by failing to inquire into a possible conflict of interest and to canvass the petitioner regarding his rights under Judge Silbert's order. Fourth, the court determined that the petitioner's ineffective assistance of appellate counsel claim failed because the petitioner did not show a reasonable probability that the issues his counsel failed to raise on appeal would have been successful. ⁶

The petitioner subsequently filed a petition for certification to appeal from the court's judgment on all four counts, which was granted on May 8, 2012. This appeal followed, wherein the petitioner raised claims only as to counts one and three of his fourth amended petition for a writ of habeas corpus. Additional facts will be set forth as necessary.

I

First, the petitioner claims that the court erred in concluding that Silverstein did not have an actual conflict of interest with the petitioner that rendered his representation ineffective. We disagree.

We begin by setting forth the relevant standard of review governing ineffective assistance of counsel claims based on an actual conflict of interest. “ ‘The sixth amendment to the United States constitutionas applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution, guarantee to a criminal defendant the right to effective assistance of counsel.’ ... Santiago v. Commissioner of Correction, 87 Conn.App. 568, 582, 867 A.2d 70, cert. denied, 273 Conn. 930, 873 A.2d 997 (2005). ‘As an adjunct to this right, a criminal defendant is entitled to be represented by an attorney free from conflicts of interest.’ ... Adorno v. Commissioner of Correction, 66 Conn.App. 179, 194, 783 A.2d 1202, cert. denied, 258 Conn. 943, 786 A.2d 428 (2001). Thus, ‘[t]he underlying right to conflict free representation is effective assistance of counsel.’ State v. Rodriguez, [61 Conn.App. 700, 706, 767 A.2d 756 (2001) ].

“ ‘In a case of a claimed conflict of interest ... in order to establish a violation of [his constitutional rights] the [petitioner] has a two-pronged task. He must establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer's performance.’ ... Phillips v. Warden, [220 Conn. 112, 132–33, 595 A.2d 1356 (1991) ]; Anderson v. Commissioner of Correction, 127 Conn.App. 538, 549, 15 A.3d 658 (2011), [aff'd, 308 Conn. 456, 64 A.3d 325 (2013) ]. ‘Unlike other claims of ineffective assistance of counsel, where a petitioner claims that his counsel's performance was deficient because of an actual conflict of interest, prejudice does not need to be established.’ Zollo v. Commissioner of Correction, 93 Conn.App. 755, 757, 890 A.2d 120, cert. denied, 278 Conn. 904, 896 A.2d 108 (2006); see also Phillips v. Warden, supra [at], 133–34 . Instead, ‘[w]here there is an actual conflict of interest, prejudice is presumed because counsel [has] breach[ed] the duty of loyalty, perhaps the most basic of counsel's duties.’ ... Phillips...