Moye v. Comm'r of Corr.

• Decision Date: 12 July 2016
• Docket Number: No. 36851.,36851.
• Citation: 142 A.3d 424,166 Conn.App. 707
• Parties: Geraldine MOYE v. COMMISSIONER OF CORRECTION.
• Court: Connecticut Court of Appeals

166 Conn.App. 707

142 A.3d 424

Geraldine MOYE

v.COMMISSIONER OF CORRECTION.

No. 36851.

Appellate Court of Connecticut.

Argued April 4, 2016.

Decided July 12, 2016.

Raymond L. Durelli, with whom, on the brief, was Michael Zariphes, assigned counsel, for the appellant (petitioner).

Kathryn W. Bare, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and David Clifton, assistant state's attorney, for the appellee (respondent).

KELLER, PRESCOTT and CREMINS, Js.

CREMINS, J.

The petitioner, Geraldine Moye, appeals from the judgment of the habeas court denying her amended petition for a writ of habeas corpus.¹ On appeal, the petitioner claims that the habeas court improperly concluded that (1) her criminal trial counsel, Attorney Paul V. Carty, did not render ineffective assistance by failing to fully investigate her competency or to request a competency hearing before she entered her plea of nolo contendere, and (2) her state and federal due process rights were not violated because “her nolo contendere plea was invalid in that [she was] incompetent at the time that she entered the plea....” We affirm the judgment of the habeas court.

The following factual and procedural history is relevant to the resolution of the petitioner's appeal. In January, 1994, the petitioner was charged with two counts of arson in the first degree in violation of General Statutes § 53a–111. The petitioner made a statement to the police in which she confessed to setting a fire in her home in the hope that she could use the insurance proceeds to make repairs to the furnace. As a result of a plea agreement, she entered a nolo contendere plea to a single substituted charge of arson in the second degree in violation of General Statutes § 53a–112. On October 14, 1994, the court, Ronan, J., sentenced the petitioner to seven years imprisonment, suspended after two years, with three years of probation to follow.

In 1998, the petitioner filed a pro se petition for a writ of habeas corpus. Appointed counsel filed an amended petition in September, 2000. The amended petition contained two counts. The first claimed that trial counsel had failed to investigate adequately the petitioner's mental state in order to ensure that her plea was knowing, intelligent, and voluntary. The second claimed that her plea had been obtained in violation of her state and federal rights to due process of law because it had not been knowingly, intelligently, and voluntarily made. The respondent, the Commissioner of Correction, replied on September 27, 2000, denying the allegations in the petition.

The habeas trial was held on July 1, 2013.² The petitioner and trial counsel testified, and the court admitted evidence, including various psychological evaluations of the petitioner that trial counsel had obtained prior to the petitioner's plea. Following posttrial briefing and oral argument, the court issued a memorandum of decision on March 27, 2014, in which it concluded that trial counsel's performance was not ineffective³ and that the petitioner had failed to present sufficient evidence to demonstrate that she was incompetent at the time of her plea. The petitioner then filed the present appeal challenging the habeas court's determinations on both grounds. She also restated her first claim to assert both that trial counsel was ineffective for failing to investigate her mental state and that he was ineffective for failing to move for a competency hearing pursuant to General Statutes (Rev. to 1993) § 54–56d.⁴ The respondent has not objected to this change, and has addressed both aspects of the ineffectiveness claim. Additional facts will be set forth as necessary.

I

The petitioner's first claim is that her trial counsel rendered ineffective assistance in that he failed to investigate adequately her competency and mental state, and failed to request that the court order a competency hearing pursuant to § 54–56d. The petitioner claims that by failing to do so, trial counsel failed to ensure that she was competent to stand trial and to make an intelligent, knowing, and voluntary decision on whether to plead nolo contendere. This contention hinges on several psychological evaluations regarding the petitioner's mental health, which her trial counsel obtained and which the petitioner now claims should have alerted trial counsel to the need to investigate her competency further or to move for a competency hearing. The respondent asserts that the evaluations do not suggest incompetence and that trial counsel's testimony regarding his interactions with the petitioner and his interpretation of the evaluations, which the trial court found credible, demonstrate that he did not have cause to either further investigate the petitioner's competency or to request a competency hearing.

The standard of review pertaining to claims of ineffective assistance of counsel is well settled. “The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous.... Historical facts constitute a recital of external events and the credibility of their narrators.... Accordingly, [t]he 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.... The application of the habeas court's factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review.” (Citations omitted; internal quotation marks omitted.) Anderson v. Commissioner of Correction, 313 Conn. 360, 375, 98 A.3d 23 (2014), cert. denied sub nom. Anderson v. Semple, ––– U.S. ––––, 135 S.Ct. 1453, 191 L.Ed.2d 403 (2015).

“[I]t is well established that [a] criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings.” (Internal quotation marks omitted.) Id. “[A] claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong ... the petitioner must demonstrate that his attorney's representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.” (Internal quotation marks omitted.) Lapointe v. Commissioner of Correction, 316 Conn. 225, 264, 112 A.3d 1 (2015).

“[I]n the context of a guilty plea ... to succeed on the prejudice prong the petitioner must demonstrate that, but for counsel's alleged ineffective performance, the petitioner would not have pleaded guilty and would have proceeded to trial.” (Internal quotation marks omitted.) Carraway v. Commissioner of Correction, 317 Conn. 594, 600 n. 6, 119 A.3d 1153 (2015). “Because both prongs of [Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ] must be demonstrated for the petitioner to prevail, failure to prove either prong is fatal to an ineffective assistance claim.” Jefferson v. Commissioner of Correction, 144 Conn.App. 767, 773, 73 A.3d 840, cert. denied, 310 Conn. 929, 78 A.3d 856 (2013).

The following additional facts are relevant to our resolution of the petitioner's claim of ineffective assistance of counsel. At the habeas trial, trial counsel testified that he had referred the petitioner for psychological evaluation in order to determine whether “there was a viable defense of mental disease or defect.” When asked why he had referred her for evaluation, trial counsel indicated that in general, he referred defendants for evaluation if he thought, upon meeting them, that there might be some mental illness, and, in particular, that the petitioner's confession “was kind of weird.” He then stated that he received several reports and letters from two doctors regarding their evaluations of the petitioner.

The reports and letters discuss multiple testing days with a psychologist, Cheryl Gelernter, and a neurologist, James C. McVeety, from March through May, 1994. The final letter from Gelernter to trial counsel stated that the “test data provide compelling evidence for the conclusion that [the petitioner] has both an organic mental disorder, probably temporal lobe epilepsy, and a schizotypal personality disorder.” It described her reasoning ability as follows: “[T]here was considerable evidence of serious problems in thinking throughout the test battery. These difficulties tend to interfere with logic and promote faulty judgment, substantially increasing the probability of errors in decision-making.” It continued to state that the petitioner “was not adequately equipped to cope with the severe psychological stressors she experienced in the months preceding the fire,” and that her “irrational behavior at the time of the fire was influenced by firmly embedded and pervasive characteristics of her dysfunctional personality.” It concluded by recommending that the petitioner be referred for treatment to address the outlined problems.

The letters also referenced test reports and letters between the petitioner's doctors, which also were submitted into evidence. The first report by Gelernter stated that trial counsel “referred [the petitioner] to assist in planning her defense to a charge of arson in the first degree.” Trial counsel “requested an evaluation of the [petitioner's] mental health at present and at the time of the fire and an opinion as to whether or not she has a mental disorder that might have affected her behavior in this incident.” The report stated that the petitioner had a mental state in the normal range, but only fair insight into her problems and impaired judgment, that she was suffering severe psychological stress and was depressed. It also stated that she was “alert, and oriented to time, place, and person,” that “[n]o deficits in productivity of thought or speech were noted nor does [the petitioner] seem to hold any well-developed delusions,”...