Pelletier v. Warden, 11479

• Decision Date: 13 July 1993
• Docket Number: No. 11479,11479
• Citation: 32 Conn.App. 38,627 A.2d 1363
• Court: Connecticut Court of Appeals
• Parties: Lawrence J. PELLETIER, Jr. v. WARDEN.

Page 1363

627 A.2d 1363

32 Conn.App. 38

Lawrence J. PELLETIER, Jr. v. WARDEN.

No. 11479.

Appellate Court of Connecticut.

Argued April 30, 1993.

Decided July 13, 1993.

Lori Welch-Rubin, Sp. Public Defender, for appellant (petitioner).

Margaret Gaffney Radionovas, Deputy Asst. State's Atty., with whom, on the brief, were John A. Connelly, State's Atty., and Eva B. Lenczewski, Asst. State's Atty., for appellee (respondent).

Before DUPONT, C.J., and DALY and FREDERICK A. FREEDMAN, JJ.

FREDERICK A. FREEDMAN, Judge.

The petitioner appeals from the judgment of the trial court dismissing his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the record supports his claim that the ineffective assistance of trial and appellate counsel deprived him of his constitutional right to a speedy trial. ¹ We affirm the judgment of the trial court.

On April 16, 1979, three security guards were shot to death at the Purolator Armored Car garage in Waterbury. More than $1.7 million in cash, jewelry, food stamps and checks was missing. The following day, the petitioner and others, including Donald Couture, were arrested. The petitioner was arraigned on an information charging three counts of capital felony in violation of General Statutes § 53a-54b and one count of robbery in the first degree in violation of General Statutes § 53a-134. Pretrial bond was set at $750,000. The petitioner has remained incarcerated since his April 17, 1979 arrest.

On June 4, 1979, a grand jury was convened. On June 6, 1979, the grand jury returned a true bill against the petitioner on three counts of felony murder in violation of General Statutes § 53a-54c.

On June 25, 1980, the petitioner filed a pro se motion for appointment of new counsel based, in part, on his concern that trial counsel had not filed speedy trial motions as the petitioner had requested. The petitioner withdrew his motion on July 24, 1980, after counsel promised, among other things, that he would pursue the petitioner's right to a speedy trial. No motion was ever filed by trial counsel regarding the petitioner's constitutional right to a speedy trial.

On February 18, 1981, the petitioner was sentenced to a ninety day term of imprisonment in a different judicial district for an unrelated offense. By letter dated February 23, 1981, the petitioner's trial counsel informed the petitioner that "[w]e filed speedy trial motions in all your cases ² which were granted by the court and the trial to be reached in the normal course." ³ No such motion, however, had been filed in the Purolator case.

On March 5, 1981, the petitioner filed a pro se notice and request for final disposition pursuant to General Statutes § 54-82c. ⁴ At an April 7, 1981 hearing, the trial court brought up the subject of the petitioner's statutory speedy trial request. Noting "lengthy motions that have been filed" and arguing that the petitioner should not "have his cake and eat it too," the state's attorney requested that the trial court extend the 120 day period set forth in the statute. The petitioner's counsel objected to the state's request. After observing that nearly 100 motions had been filed in the petitioner's case and over 100 had been filed in the case involving his codefendant Couture, and noting that "voluminous work ... remains to be done before the cases are ready for trial," the court found "good cause to grant an urgently necessary and reasonable continuance" until October 1, 1981. ⁵

Jury selection for the joint trial of the petitioner and Couture began on September 29, 1981. Jury selection continued on sixteen separate dates thereafter, concluding on November 5, 1981. The presentation of evidence began on November 12, 1981, and ended on January 8, 1982. On January 19, 1982, the jury found the petitioner and Couture guilty as charged in the indictment, of all three counts of felony murder. The court subsequently sentenced the petitioner to three consecutive terms of imprisonment of twenty-five years to life, for a total effective sentence of not less than seventy-five years and not more than life.

On April 23, 1985, our Supreme Court, relying on its decision in the companion case of State v. Couture, 194 Conn. 530, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S.Ct. 967, 83 L.Ed.2d 971 (1985), set aside the judgment and ordered a new trial because "the summation by the prosecutor ... violated the defendant's right to due process of law under the fourteenth amendment to the United States constitution and under article first, § 8 of the Connecticut constitution." State v. Pelletier, 196 Conn. 32, 34, 490 A.2d 515 (1985). ⁶

After remand by our Supreme Court, the petitioner filed a motion to dismiss the indictment on double jeopardy grounds. After the court denied the motion, the petitioner appealed. On October 1, 1985, our Supreme Court dismissed the petitioner's interlocutory appeal.

On June 16, 1986, the petitioner's case was severed from that of his codefendant, Couture. On June 30, 1986, the petitioner filed a pro se motion for appointment of new counsel based, in part, on his concern that trial counsel had not pursued matters in a speedy fashion. On July 14, 1986, the court granted the motion, appointed new counsel to represent the petitioner and informed the petitioner that "[m]aybe the day after Labor Day we will begin picking the jury." The petitioner indicated that he was satisfied with this proposed schedule.

On July 25, 1986, a trial schedule was set. The Couture trial was to commence on September 3, 1986, with the petitioner's trial to commence thereafter. On August 4, and again on September 4, 1986, the petitioner's new trial counsel was granted an extension until September 19, 1986, to file pretrial motions. On September 19, the petitioner's counsel filed six motions.

On September 8, 1986, Couture's second trial began. On November 10, 1986, a mistrial was declared in Couture's case.

On November 12, 1986, jury selection began in the petitioner's second trial after the court denied the petitioner's oral motion for an indefinite continuance or, alternatively, a change of venue due to publicity from the Couture case. Jury selection continued until January 8, 1987. The presentation of evidence began on January 13, 1987, and concluded on January 30, 1987. On February 2, 1987, the jury found the petitioner guilty of all three counts of felony murder. The court subsequently sentenced the petitioner to a total effective term of imprisonment of seventy-five years to life. This second conviction was affirmed by our Supreme Court. State v. Pelletier, 209 Conn. 564, 552 A.2d 805 (1989).

The petitioner subsequently challenged his conviction in this habeas corpus proceeding. In his petition for a writ of habeas corpus, the petitioner claimed that he was denied the effective assistance of counsel. ⁷ The petitioner claimed that trial and appellate counsel in proceedings related to his first trial failed to protect adequately his right to a speedy trial guaranteed by the sixth amendment to the United States constitution ⁸ and article first, § 8, of the Connecticut constitution. ⁹ The petitioner also claimed that trial and appellate counsel in proceedings related to his second trial failed to protect adequately his speedy trial rights. The petitioner elected to submit these claims to the habeas court on stipulated facts and exhibits. No testimony was elicited.

"[O]ur Supreme Court has adopted the two-pronged test for ineffectiveness of counsel set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The test requires a conclusive showing that (1) the attorney's performance was so deficient and the errors made by counsel were so egregious that the attorney was not functioning as counsel; id., at 687, 104 S.Ct. at 2064; and (2) there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' Id., at 694, 104 S.Ct. at 2068." Ostolaza v. Warden, 26 Conn.App. 758, 761, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992). "Thus, a habeas corpus petitioner seeking to establish such ineffectiveness must prove both deficient performance and prejudice resulting therefrom." Bunkley v. Commissioner, 222 Conn. 444, 455, 610 A.2d 598 (1992). ¹⁰

The habeas court did not address the question of counsel's performance. Instead, it focused on whether the petitioner had shown a reasonable probability that the charges against him would have been dismissed for lack of a speedy trial at any stage or level of the proceedings. "A court deciding an ineffective assistance of counsel claim need not address the question of counsel's performance, if it is easier to dispose of the claim on the ground of insufficient prejudice." Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988). The habeas court confined its analysis to the prejudice prong of the Strickland inquiry in evaluating the petitioner's claims of ineffective assistance of trial and appellate counsel in protecting his speedy trial rights. We will do the same.

"The Supreme Court of the United States and [the Connecticut Supreme Court] have identified four factors which form the matrix of [a] defendant's constitutional right to speedy adjudication: '[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.' Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, [2192] 33 L.Ed.2d 101 (1972); State v. Lloyd, 185 Conn. 199, 208, 440 A.2d 867 (1981); State v. Nims, 180 Conn. 589, 591, 430 A.2d 1306 (1980). A balancing test is to be applied on a case by case basis. None of the factors standing alone demands a set disposition; rather it is the total mix which determines whether the defendant's right was violated. State v. Nims, supra, 180 Conn. at 591-92, 430 A.2d 1306." State v. Johnson, 190 Conn....