Nardini v. Manson

• Decision Date: 19 April 1988
• Docket Number: No. 13167,13167
• Citation: 540 A.2d 69,207 Conn. 118
• Court: Connecticut Supreme Court
• Parties: Dante NARDINI v. John R. MANSON, Commissioner of Correction.

Page 69

540 A.2d 69

207 Conn. 118

Dante NARDINI v. John R. MANSON, Commissioner of Correction.

No. 13167.

Supreme Court of Connecticut.

Argued Jan. 7, 1988.

Decided April 19, 1988.

James G. Clark, Asst. State's Atty., with whom, on the brief, was Jack Fischer, Legal Intern, for appellant (respondent).

Charles Hanken, with whom, on the brief, was Richard Emanuel, Bridgeport, for appellee (petitioner).

Before PETERS, C.J., SHEA, GLASS, COVELLO and HULL, JJ.

COVELLO, Associate Justice.

The petitioner, Dante Nardini, sought a writ of habeas corpus commanding his release from imprisonment under sentences imposed after two criminal convictions, claiming that he had been denied effective assistance of counsel when his attorney failed to raise constitutional due process objections to the use, for impeachment purposes, of two prior felony convictions obtained when he was not represented by counsel. The habeas court, Satter, J., denied the petition. The petitioner thereafter appealed to the Appellate Court, which, having found the due process violations, reversed the lower court decision and remanded the matter to the habeas court with instructions to grant the petition. 10 Conn.App. 147, 521 A.2d 1059.

Upon our grant of certification, the state appealed, claiming that, having determined that the use at trial of the uncounseled convictions amounted to constitutional error, the Appellate Court should have addressed the further issue of whether that error was harmless beyond a reasonable doubt. Further examination of the record discloses that a correct analysis requires our review of the due process issue within the context of an ineffective assistance of counsel claim, thereby dictating that we take up matters not addressed by the Appellate Court and beyond the scope of the certified issue. ¹ State v. Hodge, 201 Conn. 379, 381, 517 A.2d 621 (1986). Ultimately, we conclude that the dispositive issue is whether the ineffective assistance of the petitioner's trial counsel affected the outcome of the case. See Williams v. Manson, 195 Conn. 561, 564, 489 A.2d 377 (1985). We conclude that no such effect can be shown, and therefore we reverse the judgment of the Appellate Court.

Examination of the record discloses the petitioner's conviction by a jury, on January 25, 1979, of conspiracy to commit arson in the first degree in violation of General Statutes §§ 53a-111(a) ² and 53a-48(a), ³ and arson in the first degree in violation of General Statutes § 53a-111(a). ⁴ He was found not guilty of a third count, second degree larceny. General Statutes § 53a-123(a). The court rendered a judgment of conviction and sentenced the petitioner to an effective term of not less than eighteen years nor more than thirty-six years imprisonment. ⁵ This sentence was modified upon review by the Sentence Review Division of the Superior Court to an effective sentence of not less than ten years nor more than twenty years imprisonment. On the state's appeal concerning resentencing pursuant to the direction of the Sentence Review Division, this court upheld the judgment. State v. Nardini, 187 Conn. 109, 445 A.2d 304 (1982). (Nardini I )

At the petitioner's arson trial, over his counsel's objection, the trial court admitted as impeachment evidence two prior felony convictions, a 1953 conviction for breaking and entering, and a 1958 conviction for carrying a pistol without a permit. State v. Nardini, 187 Conn. 513, 520, 447 A.2d 396 (1982). (Nardini II.) The reasons offered in opposition to the admission of the evidence were, essentially, relevancy objections that challenged the probative value of these convictions on the issue of the petitioner's credibility at trial. Id., at 521, 447 A.2d 396.

After the entry of judgment following his convictions, the petitioner appealed to this court. Id., at 513, 447 A.2d 396. He claimed that the trial court had erred in admitting evidence of his two prior felony convictions for impeachment purposes. Id., at 513-14, 447 A.2d 396. This court considered those evidentiary, state law claims and concluded that because the "minimal prejudice" was outweighed by the probative value of the evidence; id., at 530, 447 A.2d 396; it was within the trial court's discretion to admit "[t]he conviction for breaking and entering, a crime regarded as having more than peripheral bearing upon honesty" despite the lapse of twenty years between the conviction and the time of trial. Id., at 528, 447 A.2d 396.

As to the conviction for carrying a pistol without a permit, however, this court determined that its "significance upon credibility ... [had] entirely dissipated by the date of trial and its admission ... [could not, therefore,] be justified." Id., at 530, 447 A.2d 396. This court concluded, however, that "this error was harmless because it is so highly improbable that any additional prejudice arising from knowledge by the jury of this second conviction affected the outcome." Id. Accordingly, this court affirmed the judgment.

On February 11, 1983, the petitioner applied for the writ of habeas corpus that is the subject of this appeal. As the basis for his petition, he alleged for the first time that his trial counsel had failed to advance on his behalf constitutional due process arguments against the use of the prior felony convictions for impeachment pursuant to the holding in Loper v. Beto, 405 U.S. 473, 483, 92 S.Ct. 1014, 1019, 31 L.Ed.2d 374 (1972). Specifically, the petitioner contends that the pleas that resulted in the 1953 and 1958 convictions were entered while he was unrepresented by counsel. Therefore, their introduction to impeach his credibility violated his constitutional right to due process of law.

The habeas court, having found that the prior convictions were in fact uncounseled, applied the rule articulated in Loper v. Beto, supra, e.g., that a prior uncounseled conviction used to impeach a defendant's credibility is an unconstitutional deprivation of due process of law. The habeas court held, however, that the petitioner's trial counsel's failure to discover the uncounseled nature of the convictions was not ineffective assistance of counsel. It observed, in addition, that this court had already ruled on direct appeal in this case "that the use of the prior convictions [was] of either minimal prejudice or harmless error ... [and that] this use could not [therefore] have contributed to petitioner's conviction." Nardini v. Manson, 10 Conn.App. 147, 152, 521 A.2d 1059 (1987). The habeas court concluded that "the petitioner failed to sustain his burden of proving ineffective assistance of counsel"; id., at 153, 521 A.2d 1059; and, accordingly, denied the petition.

The petitioner appealed to the Appellate Court, which concluded that once the habeas court had found the use of the prior uncounseled convictions unconstitutional, it should have granted the writ of habeas corpus solely on that basis. Id., at 159, 521 A.2d 1059. Relying on the Loper v. Beto doctrine, the Appellate Court found error and ordered the petition granted deeming it unnecessary to consider the claim of ineffective assistance of counsel. Id., at 159-60, 521 A.2d 1059.

The gravamen of the claim in this petition, however, is that counsel was ineffective in failing to raise constitutional due process objections to the use of uncounseled prior convictions for impeachment purposes. The due process violations serve to demonstrate the failure of trial counsel to protect the petitioner's legitimate interests and to illustrate the precise manner of counsel's ineffectiveness at the petitioner's criminal trial.

In any habeas corpus proceeding, the petitioner is obligated to allege and prove that he or she did not deliberately bypass the orderly procedure of a direct appeal. Blue v. Robinson, 173 Conn. 360, 369, 377 A.2d 1108 (1977). "[T]he issue of deliberate bypass is jurisdictional in nature ... [and] must be resolved before a decision on the merits may be rendered." (Citations omitted.) Galland v. Bronson, 204 Conn. 330, 333, 527 A.2d 1192 (1987). The deliberate bypass rule is, however, no jurisdictional obstacle where a petition alleges ineffective assistance of counsel. State v. Rivera, 196 Conn. 567, 571, 494 A.2d 570 (1985).

A convicted defendant who complains of ineffective assistance of counsel must show, first, that counsel's representation fell below the standard of reasonably effective assistance. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984); Williams v. Manson, supra, 195 Conn. at 564, 489 A.2d 377. The defendant must then show that counsel's ineffectiveness at trial prejudiced the defense. Strickland v. Washington, supra. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id., 466 U.S. at 691, 104 S.Ct. at 2066. A court deciding an ineffective assistance of counsel claim need not address the question of counsel's...