Porter v. Commissioner of Correction, 29936.

CourtAppellate Court of Connecticut
Citation120 Conn.App. 437,991 A.2d 720
Decision Date13 April 2010
Docket NumberNo. 29936.,29936.
PartiesKenneth B. PORTER v. COMMISSIONER OF CORRECTION.

Michael D. Day, for the appellant (petitioner).

Rita M. Shair, senior assistant state's attorney, with whom were John A. Connelly, state's attorney, and, on the brief, Catherine Brannelly Austin, senior assistant state's attorney, for the appellee (respondent).

GRUENDEL, ROBINSON and ALVORD, Js.

ROBINSON, J.

The petitioner, Kenneth B. Porter, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. Following the court's denial of his petition for certification to appeal, the petitioner appealed, claiming that the court (1) abused its discretion by denying his petition for certification to appeal and (2) improperly concluded that he was not denied the effective assistance of trial counsel. We dismiss the appeal.

The following facts, which the jury reasonably could have found at the petitioner's criminal trial, are relevant to the petitioner's allegations of ineffective assistance of trial counsel. "On December 2, 2000, Richard Sutphin was driving a public utilities truck on Cooke Street in Waterbury. Sutphin was forced to stop the truck at the intersection of Cooke Street and Buckingham Street because the petitioner was in the roadway, pushing a car. When the car that he was pushing was driven away, the petitioner approached the front of Sutphin's truck. Upon reaching the truck, the petitioner began to yell, pull his hair out, and wildly strike the truck with his fists and head. He continued that behavior for approximately fifteen minutes. During that time, Sutphin radioed for police assistance, left the truck and ran toward an approaching police car that was driven by Sergeant Paul Ezzo of the Waterbury police department.

"At that time, the petitioner, seeing an approaching vehicle driven by Andelino Vilar, turned away from the truck and jumped on to the hood of Vilar's car. The petitioner began to strike the car. During the attack, the petitioner reached through an open window, grabbed Vilar's sweater and attempted to pull Vilar out of the vehicle.

"Ezzo approached the petitioner and informed him that he was placing him under arrest. The petitioner began to swing, kick and bite at Ezzo. Ezzo, Sutphin and Ted Peil, a private citizen, attempted to restrain the petitioner. While wrestling the petitioner to the ground, Ezzo called for additional police assistance and was repeatedly struck by the petitioner. Ezzo sprayed the petitioner with Mace. The Mace had little or no effect on the petitioner. When additional police support arrived, it eventually took seven officers approximately thirty minutes to subdue and to place the petitioner under arrest." State v. Porter, 76 Conn.App. 477, 480-81, 819 A.2d 909, cert. denied, 264 Conn. 910, 826 A.2d 181 (2003).

As a result of the incident, the petitioner was charged with numerous crimes. After a trial at which the petitioner represented himself with the assistance of standby counsel,1 the jury found him guilty of one count of assault of public safety personnel in violation of General Statutes § 53a-167c(a), one count of interfering with an officer in violation of General Statutes (Rev. to 1999) § 53a-167a(a) and two counts of breach of the peace in violation of General Statutes (Rev. to 1999) § 53a-181(a)(1) and (2). Id., at 479, 819 A.2d 909. The court, Cofield, J., gave the petitioner a total effective sentence of ten years to serve in prison and ten years of special parole.2 The petitioner appealed. On appeal, this court reversed the petitioner's conviction, in part, and remanded the case "with direction to combine the conviction of interfering with an officer with the conviction of assault of public safety personnel and to vacate the sentence on the conviction of interfering with an officer." Id., at 502, 819 A.2d 909. The judgment was affirmed in all other respects.3Id.

In August, 2005, the self-represented petitioner filed the petition for a writ of habeas corpus that is at issue in this appeal. Appointed counsel filed a second amended petition, alleging, in relevant part, that the petitioner had been denied the effective assistance of trial counsel in that, prior to trial, attorney Rosemary Montesi failed to (1) file a notice of intent to assert a defense of mental disease or defect pursuant to Practice Book § 40-17,4 (2) secure defense witnesses to testify at trial, (3) have the petitioner evaluated for treatment under the Connecticut alcohol and drug abuse commission (commission), (4) investigate adequately the factual basis or evidence to support the issues claimed and (5) represent the petitioner within the range of competency demonstrated by lawyers of ordinary training and skill in criminal law. The petitioner also alleged that, but for counsel's errors and omissions, the jury's verdict would have been different. Following trial, the court denied the petition for a writ of habeas corpus and denied his petition for certification to appeal.

In his appeal, the petitioner claims that the court abused its discretion by failing to grant his petition for certification to appeal with respect to his claim that Montesi's representation was ineffective because she failed to file a notice of the affirmative defense of mental disease or defect. "In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, 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. ... Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. ... Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. ...

"To prove an abuse of discretion, the petitioner must demonstrate that the resolution of the underlying claim involves issues that are debatable among jurists of reason; that a court could resolve the issues in a different manner; or that the questions are adequate to deserve encouragement to proceed further. ... For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel's performance was deficient and that there is a reasonable probability that, but for the counsel's mistakes, the result of the proceeding would have been different." (Internal quotation marks omitted.) Francis D. v. Commissioner of Correction, 118 Conn. App. 350, 352-53, 983 A.2d 70 (2009), cert. denied, 294 Conn. 930, 986 A.2d 1056 (2010).

The habeas court made the following relevant findings of fact following trial. Both the petitioner and Montesi testified. The court found Montesi to be highly credible and the petitioner generally not credible. After she was appointed to represent the petitioner,5 Montesi met with the petitioner, who told her that at the time of the incident, he was upset because his wife, who was pregnant, had gone to meet her former husband. The petitioner was praying in the middle of the street and "had an aura about him which was demonic." He also told Montesi that he remembered Vilar's car approaching the intersection but denied attempting to pull Vilar out of his car. Montesi found the petitioner's actions on December 2, 2000, to be "bizarre" and took numerous steps to explore issues related to the petitioner's competency to stand trial, the existence of a defense of mental disease or defect and the likelihood that the use of drugs had affected the petitioner's behavior at the time of the incident.

In Montesi's opinion, the petitioner was competent to stand trial: he understood the charges against him, was able to recall the events surrounding the crime and was able to assist in his defense. Each time she and the petitioner discussed the facts, the petitioner's report was lucid and clear. In an effort to obtain a second opinion regarding the petitioner's competency, Montesi asked Julie King and Audrey Bennet, licensed clinical social workers in the public defender's office, to interview the petitioner. King and Bennet also believed that the petitioner was competent. Montesi, therefore, never filed a motion for an evaluation to determine the petitioner's competency to stand trial.

On several occasions, Montesi explored with the petitioner whether drug or alcohol use had affected his behavior at the time of the incident. Montesi knew that the petitioner resided at Connecticut Renaissance House6 in July, 2000, and that he occasionally used marijuana. Montesi, therefore, asked the petitioner if he was interested in a substance abuse program. The petitioner informed Montesi that he did not want such a program, as it would be a "setup" for failure. When Montesi asked the petitioner directly whether he was under the influence of drugs or alcohol at the time of the incident, he "vehemently denied" the use of drugs or alcohol. Moreover, Montesi testified that the petitioner's December 4, 2000 medical records from St. Mary's Hospital do not indicate the presence of drugs or alcohol.7 Consequently, Montesi and the petitioner never discussed the filing of a motion for substance abuse evaluation pursuant to General Statutes § 17a-693.8

Montesi also explored the possibility of an affirmative defense of mental disease or defect pursuant to General Statutes § 53a-13.9 Through the office of the public defender, Montesi...

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6 cases
  • State v. Weathers
    • United States
    • Connecticut Court of Appeals
    • March 19, 2019
    ...his conduct to the requirements of law." (Citation omitted; internal quotation marks omitted.) Porter v. Commissioner of Correction , 120 Conn. App. 437, 449–50 n.17, 991 A.2d 720, cert. denied, 298 Conn. 901, 3 A.3d 71 (2010). The matter subsequently was tried to the court over the course ......
  • Elsey v. Comm'r of Correction
    • United States
    • Connecticut Court of Appeals
    • January 18, 2011
    ...may dismiss a petitioner's claim if he fails to meet either prong." (Internal quotation marks omitted.) Porter v. Commissioner of Correction, 120 Conn.App. 437, 447, 991 A.2d 720, cert. denied, 298 Conn. 901, 3 A.3d 71 (2010).A The first aspect of the petitioner's ineffective assistance of ......
  • Greene v. Comm'r Of Correction.
    • United States
    • Connecticut Court of Appeals
    • August 10, 2010
    ...errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Porter v. Commissioner of Correction, 120 Conn.App. 437, 447, 991 A.2d 720 (2010). To satisfy the prejudice prong for ineffective assistance claims resulting from guilty pleas, “the evidence......
  • William B.* v. Comm'r of Correction.
    • United States
    • Connecticut Court of Appeals
    • May 10, 2011
    ...trial strategy. See, e.g., Diaz v. Commissioner of Correction, supra, 125 Conn.App. at 63, 6 A.3d 213; Porter v. Commissioner of Correction, 120 Conn.App. 437, 449, 991 A.2d 720, cert. denied, 298 Conn. 901, 3 A.3d 71 (2010).6 [17 A.3d 534 , 128 Conn.App. 494] C We finally consider the peti......
  • Request a trial to view additional results

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