Henderson v. Commissioner of Correction

• Decision Date: 16 December 2003
• Docket Number: (AC 23253).
• Citation: 835 A.2d 1036,80 Conn. App. 499
• Court: Connecticut Court of Appeals
• Parties: DANIEL HENDERSON v. COMMISSIONER OF CORRECTION.

80 Conn. App. 499

835 A.2d 1036

DANIEL HENDERSON v. COMMISSIONER OF CORRECTION.

(AC 23253).

Appellate Court of Connecticut.

Argued September 12, 2003.

Officially released December 16, 2003.

Schaller, DiPentima and Mihalakos, Js. Richard R. Brown, with whom, on the brief, was Robert T. Rimmer, for the appellant (petitioner).

Denise B. Smoker, assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Jo Anne Sulik, assistant state's attorney, for the appellee (respondent).

Opinion

DiPENTIMA, J.

The petitioner, Daniel Henderson, appeals from the dismissal of his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly concluded that (1) he was not entitled to a review of the constitutionality of General Statutes § 53a-40b,¹ the sentencing statute under which his sentence had been enhanced, and (2) the sentencing court had not sentenced him in an illegal manner. We disagree and, accordingly, affirm the judgment of the habeas court. The following facts and procedural history are relevant to our disposition of the petitioner's appeal. The petitioner was charged with two counts of larceny in the sixth degree in violation of General Statutes § 53a-125b and one count of forgery in the second degree in violation of General Statutes § 53a-139. The petitioner pleaded not guilty and elected a jury trial. At trial, the state proved that the petitioner, on August 11, 1993, knowingly used a fraudulent money order in the amount of $250 to pay a $170 restaurant check and accepted $80 in change. The defendant was convicted on all counts.

Following the conviction, the defendant admitted to being a persistent larceny offender pursuant to General Statutes § 53a-40 (e).² He further admitted to committing the crimes while he was released on bond pending two other criminal cases, making him subject to an enhanced sentence pursuant to § 53a-40b.

The office of adult probation prepared a presentence investigation report despite the fact that the petitioner failed to appear for an interview relative to that report. The report was available to the court at the sentencing hearing on January 24, 1995. The petitioner failed to appear at the hearing.³ The petitioner's counsel, Elisa L. Villa, requested a continuance to determine her client's whereabouts, but the court denied the request. After hearing arguments, the court sentenced the petitioner, in absentia, to five years imprisonment for the forgery conviction and a consecutive sentence enhancement of ten years imprisonment for violation of § 53a-40b. On February 22, 1995, the petitioner appealed from the judgment of conviction. This court dismissed his appeal on April 5, 1995, because his whereabouts were unknown at that time. See State v. Henderson, 235 Conn. 901, 665 A.2d 903 (1995) (certification to appeal from this court's dismissal denied). After the appeal was dismissed, the petitioner began serving his sentence.⁴ On November 4, 1996, the petitioner filed his petition for a writ of habeas corpus, alleging that Villa had provided ineffective assistance of counsel because she failed to inform the trial court that his alleged intoxication during trial had caused him to be mentally incompetent and unable to participate in the proceedings. Attorneys John R. Williams and Glenn M. Conway represented the petitioner in that proceeding. The habeas court, Hon. Anthony V. DeMayo, judge trial referee, found that the petition lacked merit and rendered judgment of dismissal. The petitioner appealed, and this court affirmed the judgment. Henderson v. Commissioner of Correction, 60 Conn. App. 911, 762 A.2d 526 (2000).

On September 7, 1999, the petitioner filed his second petition for a writ of habeas corpus. The court, White, J., held a hearing on the petition on February 4, 2002. In his second habeas petition, the petitioner alleged that (1) he had received ineffective assistance of counsel in his representation by his criminal trial counsel and by his first habeas counsel because of their failure to challenge the constitutionality of § 53a-40b, and (2) the sentencing judge imposed the sentence enhancement in an illegal manner. The habeas court dismissed the petition in its entirety and granted certification to appeal. This appeal followed. Additional facts will be set forth as necessary. The standard of review of a habeas court's judgment is well established. "In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but 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." (Internal quotation marks omitted.) Jackson v. Commissioner of Correction, 68 Conn. App. 190, 192, 791 A.2d 588, cert. denied, 260 Conn. 910, 795 A.2d 544 (2002). "The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony." (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 66 Conn. App. 850, 851, 785 A.2d 1225 (2001).

I

The petitioner argues that the issue before this court is whether he was entitled to a review of the constitutionality of § 53a-40b. Because this is an appeal from the dismissal of a petition for a writ of habeas corpus, the issue is framed more properly as whether the petitioner's criminal trial counsel and his first habeas counsel provided ineffective assistance when each failed to challenge the constitutionality of § 53a-40b.

The petitioner contends that a reasonably competent attorney would have argued that § 53a-40b permits the imposition of arbitrary sentence enhancements, and deprives him of reasonable notice and an opportunity to be heard regarding the factual basis for his enhanced sentence. The petitioner further contends that a competent attorney would have argued that the absence of objective sentencing criteria in the statute gives the trial court unfettered discretion to impose excessive or unreasonable sentences.

"In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel's performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversarial process that renders the result unreliable. . . .

"The first component, generally referred to as the performance prong, requires that the petitioner show that counsel's representation fell below an objective standard of reasonableness. . . . In Strickland, the United States Supreme Court held that [j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a [petitioner] 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 [petitioner] 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 adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Citation omitted; internal quotation marks omitted.) Braham v. Commissioner of Correction, 72 Conn. App. 1, 5-6, 804 A.2d 951, cert. denied, 262 Conn. 906, 810 A.2d 271 (2002).

The petitioner claims that counsels' failure to identify and to present a valid constitutional argument constitutes deficient performance. The petitioner further argues that to determine whether counsels' performances were deficient, the court had to consider the constitutionality of § 53a-40b. We disagree.

"[T]he Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim." (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 218 Conn. 403, 425, 589 A.2d 1214 (1991), quoting Engle v. Isaac, 456 U.S. 107, 134, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982). "The [petitioner] is also not guaranteed assistance of an attorney who will make no mistakes. . . . What constitutes effective assistance [of counsel] is not and cannot be fixed with yard-stick precision, but varies according to the unique circumstances of each representation." (Citation omitted; internal quotation marks omitted.) Jeffrey v. Commissioner of Correction, 36 Conn. App. 216, 219, 650 A.2d 602 (1994).

The habeas court found that the petitioner had "failed to prove by a preponderance of the evidence that any of...