Lindo v. Mullaney

• Decision Date: 19 August 2003
• Docket Number: (AC 22681).
• Court: Connecticut Court of Appeals
• Parties: BARRINGTON LINDO v. GARRELL MULLANEY, SUPERINTENDENT OF HEALTH, CONNECTICUT VALLEY HOSPITAL

78 Conn. App. 827

829 A.2d 86

BARRINGTON LINDO v. GARRELL MULLANEY, SUPERINTENDENT OF HEALTH, CONNECTICUT VALLEY HOSPITAL

(AC 22681).

Appellate Court of Connecticut.

Argued March 20, 2003.

Officially released August 19, 2003.

Lavery, C.J., and Schaller and Hennessy, Js. Deborah G. Stevenson, special public defender, for the appellant (petitioner).

James A. Killen, Sr., assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Donna Mambrino, senior assistant state's attorney, for the appellee (respondent).

Opinion

HENNESSY, J.

The petitioner, Barrington Lindo, appeals from the judgment of the habeas court dismissing his amended petition for a writ of habeas corpus in which he claimed that he had been denied the effective assistance of counsel. On appeal, the petitioner claims that the court improperly (1) failed to conclude that he was denied effective assistance of counsel under the test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), (2) failed to consider expert testimony concerning his counsel's allegedly deficient performance and (3) concluded that the petitioner was not prejudiced in his habeas corpus case because the records from his original trial had been destroyed. We affirm the judgment of the habeas court.

The court found the following relevant facts. The petitioner was a defendant in a criminal case¹ in which he was represented by attorney Lawrence S. Hopkins of the public defender's office. Prior to trial, the prosecutor offered the petitioner, in exchange for his pleas of guilty, a sentence of twelve years, suspended after six years.² Hopkins discussed the offer with the petitioner and advised him about the defense of mental disease or defect. The petitioner decided to reject the offer and to proceed to trial with the affirmative defense of mental disease or defect. After trial, the petitioner was found not guilty by reason of mental disease or defect and acquitted on the charges of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59 (a) (1), and burglary in the first degree in violation of General Statutes § 53a-101. On March 15, 1991, the trial court, pursuant to General Statutes § 17a-582 et seq., committed the petitioner to the jurisdiction of the psychiatric security review board (board) for confinement in a hospital for psychiatric disabilities for a period of time not to exceed ten years. The petitioner has remained at the Whiting Forensic Division of Connecticut Valley Hospital (Whiting) pursuant to the court order. Approximately ten years after being committed, the petitioner filed a petition for writ of habeas corpus on May 9, 2000, and an amended petition on August 23, 2000.

Before addressing the petitioner's claims, we will address whether this court properly can grant the relief sought by the petitioner. The petitioner's prayer for relief asks that a new trial be ordered and that the court "release [him] from his confinement or transfer him to a correctional institution for subsequent discharge. . . ." The request for a new trial is unusual considering the fact that the petitioner was acquitted of the charges against him, albeit by reason of mental disease or defect, and his term of imprisonment as ordered by the court has been completed. "[I]t is rare for an insanity acquittee to challenge his or her acquittal; even rarer is the case in which that challenge is successful . . . ." Connelly v. Commissioner of Correction, 258 Conn. 394, 405, 780 A.2d 903 (2001). The petitioner, however, does have a right to request a new trial and risk a conviction. See id., 400. The time the petitioner has spent in confinement would be credited toward any new sentence that could be rendered if the petitioner were found guilty after a new trial. See id., 408.

I

Having determined that the petitioner could be granted a new trial, we now turn to his claims on appeal. The petitioner's first claim is that the court improperly found that his defense counsel did not render ineffective assistance as set forth in Strickland v. Washington, supra, 466 U.S. 687.

"[T]he United States Supreme Court adopted a two part analysis for claims of ineffective assistance of counsel. Under Strickland, the petitioner must show that: (1) defense counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for defense counsel's deficient representation, the result of the proceeding would have been different." (Internal quotation marks omitted.) Jean-Jacques v. Commissioner of Correction, 73 Conn. App. 742, 746, 809 A.2d 541 (2002).

"Our standard of review in a habeas corpus proceeding challenging the effective assistance of trial counsel is well settled. Although a habeas court's findings of fact are reviewed under the clearly erroneous standard of review . . . [w]hether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. . . . As such, that question requires plenary review by this court unfettered by the clearly erroneous standard." (Internal quotation marks omitted.) Figueroa v. Commissioner of Correction, 74 Conn. App. 352, 354, 812 A.2d 164 (2002), cert. denied, 262 Conn. 954, 818 A.2d 780 (2003).

A

In support of his claim that defense counsel's representation fell below an objective standard of reasonableness, the petitioner alleges that counsel assured him that if he were successful in going forward with the trial and the defense of mental disease or defect, his commitment period could be only two years.³ The petitioner further contends that counsel never informed him that he could be confined indefinitely. The petitioner alleges that as a result of his having followed counsel's advice to use the defense of mental disease or defect instead of accepting the plea bargain offered by the prosecutor, he continues to be held at Whiting instead of having been released at the end of six years.⁴

Hopkins testified that he told the petitioner that his condition would be reviewed periodically and that he could, if his condition improved, be released in two years. He also testified that he did not explain to the petitioner that there was a possibility that he could be held beyond the ten year maximum confinement, stating: "I'm sure I never explained it to him after that because I possibly never saw him after that term was imposed."

Hopkins testified that he explained that the petitioner's options prior to trial were either to take the offer of twelve years incarceration, suspended after six years, or to go to trial on the merits. The petitioner decided to refuse the state's offer because he believed that accepting the offer would involve too long a sentence. The petitioner, after discussing the option of a trial with Hopkins, agreed with his counsel that under the facts of the case, he likely would be found guilty and exposed to a serious sentence. They agreed that the best option was to proceed to trial and to rely on the defense of mental disease or defect.

The petitioner further argues that defense counsel, being aware of the petitioner's mental history and voluntary intoxication at the time of the assault, should have used those factors at trial to negate the element of specific intent. The petitioner argues, in the alternative, that counsel should have advised him to agree to the plea offer under which he would have served less time.⁵

Hopkins testified that he urged the petitioner to consider the plea offer, but the petitioner refused. Hopkins further explained that because the petitioner had seven previous convictions for crimes of violence and because the evidence clearly indicated that the petitioner had committed the unprovoked vicious attack of which he was accused, relying on a defense that he was not the perpetrator when he was well known to his victim, who had identified him, would have resulted in what counsel termed "a serious sentence." The court was free to accept the reasoning and testimony of defense counsel, and to reject the petitioner's claim that he was misadvised. See State v. Martin, 38 Conn. App. 731, 744, 663 A.2d 1078 (1995), cert. denied, 237 Conn. 921, 676 A.2d 1376, cert. denied, 519 U.S. 1044, 117 S. Ct. 617, 136 L. Ed. 2d 541 (1996).

The facts of this case are very similar to those addressed by our Supreme Court in Duperry v. Solnit, 261 Conn. 309, 333-36, 803 A.2d 287 (2002). In Duperry, the petitioner's attorney testified that he had not informed the petitioner that he could be held beyond the maximum term of confinement if he were found not guilty by reason of mental disease or defect.⁶ Id., 334. Our Supreme Court held that the attorney's performance did not fall below the objective standard of reasonableness and that "the petitioner's belief that he would spend less time in confinement by pleading not guilty and pursuing a mental health defense rather than by pleading guilty was based on the petitioner's own conjecture and not on the advice of his attorney." Id., 336.

In the case before us, the court concluded "after a full hearing based on the preponderance of the credible, reliable, relevant and legally admissible evidence, and the reasonable, logical and lawful inferences to be drawn therefrom, [that the petitioner's attorney had] rendered effective assistance of counsel to the petitioner and met the standard of reasonable competence of a criminal defense lawyer of ordinary skill and training in the criminal law." Under the circumstances as presented here and on the basis of our Supreme Court's decision in Duperry v. Solnit, supra, 261 Conn. 309, we conclude that the court correctly determined that the petitioner was not deprived of effective assistance of counsel.

B

The petitioner further argues that the court ignored his claim at the habeas hearing that defense counsel had conducted an...