Porter v. Commissioner of Correction

• Decision Date: 02 January 2007
• Docket Number: No. 26695.,26695.
• Citation: 912 A.2d 533,99 Conn.App. 77
• Court: Connecticut Court of Appeals
• Parties: Kenneth PORTER v. COMMISSIONER OF CORRECTION.

912 A.2d 533

99 Conn.App. 77

Kenneth PORTER v. COMMISSIONER OF CORRECTION.

No. 26695.

Appellate Court of Connecticut.

Argued October 19, 2006.

Decided January 2, 2007.

Robert J. McKay, for the appellant (petitioner).

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

GRUENDEL, HARPER and FRANCIS X. HENNESSY, Js.

FRANCIS X. HENNESSY, J.

The petitioner, Kenneth Porter, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court should have granted his petition for certification to appeal because he had received ineffective assistance of appellate counsel. We dismiss the appeal.

The petitioner's conviction arose out of the following factual scenario. On December 2, 2000, Richard Sutphin, while driving a public utilities truck in Waterbury, was forced to stop the truck at an intersection because the petitioner was in the roadway, pushing a car. State v. Porter, 76 Conn. App. 477, 480, 819 A.2d 909, cert. denied, 264 Conn. 910, 826 A.2d 181 (2003). The petitioner approached the truck that Sutphin was driving and began to yell and strike the vehicle wildly with his head and fists. Id. Sutphin radioed the police and, when the police arrived, left his truck and ran toward the police cruiser that was being driven by Sergeant Paul Ezzo. Id. At this time, the petitioner jumped onto the hood of another vehicle being operated by Andelino Vilar. Id., at 480-81, 819 A.2d 909. Ezzo approached the petitioner and told him that he was under arrest at which time, the petitioner swung his arms, kicked his legs and struck Ezzo in the face and shoulder, ultimately knocking Ezzo to the ground. Id., at 481, 819 A.2d 909. Ezzo deployed Mace and, with the help of Sutphin and another citizen, restrained the defendant and called for backup assistance. Id. Finally, Ezzo arrested the petitioner with the help of seven police officers, including Officer Richard Valente.

The petitioner was charged in an eight count information. Subsequently, the state filed a part B information, charging the petitioner with being a persistent serious felony offender. Id., at 482, 819 A.2d 909. The matter was tried to the jury, and the petitioner represented himself with the assistance of standby counsel. The petitioner was convicted, following the jury trial, of two counts of breach of the peace in violation of General Statutes (Rev. to 1999) § 53a-181 (1) and (2), one count of assault of public safety personnel in violation of General Statutes § 53a-167c(a)(1), and one count of interfering with an officer in violation of General Statutes (Rev. to 1999) § 53a-167a. After the jury returned its verdict, the petitioner pleaded guilty to being a persistent serious felony offender. The petitioner was sentenced to a total effective term of ten years incarceration followed by ten years special parole.

The petitioner filed a direct appeal to this court from the judgment of conviction. The defendant was represented on appeal by attorney H. Owen Chace. State v. Porter, 76 Conn.App. at 479, 819 A.2d 909. On appeal, the petitioner raised three issues, the first of which was a claim of double jeopardy under the federal constitution.¹ We concluded that punishment for both the assault of public safety personnel and the interference with a police officer violated the prohibition against double jeopardy. Id., at 482-86, 819 A.2d 909. In so concluding, we affirmed the judgment in part and reversed it in part, and remanded the case with direction to merge 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. In addition, we declined to review the claim of instructional error, deeming it abandoned because it was briefed inadequately. Id., at 482 n. 6, 819 A.2d 909.

The petitioner subsequently filed a petition for a writ of habeas corpus alleging that his conviction should be set aside due to ineffective assistance of appellate counsel. The petitioner asserted that his appellate counsel was ineffective because he failed to brief the claim properly that the trial court failed to give an orally requested jury instruction on lesser included offenses. In support of his assertion, the petitioner submits that this court found that the claim was abandoned because it was not properly briefed. The petitioner claims that his appellate counsel's performance prejudiced him because if his counsel had briefed the claim on appeal properly, this court would have reversed the judgment and ordered a new trial.

The habeas court denied relief, finding that the evidence in the record conclusively showed that the ineffectiveness claim was meritless. The court found that the conclusion of this court was evidence of the efficacy of Chace's overall appellate strategy.² The court also determined that our Supreme Court's denial of the petition for certification to appeal was further evidence that the petitioner was given "full, fair and complete treatment and consideration of all issues raised during the trial of this case and the appeals taken thereafter." Furthermore, the court found that the petitioner was not prejudiced because there was not any ineffective assistance of counsel that would have resulted in a change in the outcome of the trial or the appeal.

The threshold issue to determine, prior to appellate review of the merits of the dismissal of a habeas corpus petition, is whether the habeas court abused its discretion in denying the petition for certification to appeal. We conclude that it did not.

As an initial matter, we set forth the standard of review and legal principles that guide our resolution of the petitioner's appeal. The intent of the legislature in enacting General Statutes § 52-470(b)³ was to discourage frivolous habeas appeals. Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994). With this intent in mind, our Supreme Court, in its decision in Simms, incorporated the criteria adopted by the United States Supreme Court in Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S.Ct. 860, 112 L.Ed.2d 956 (1991), as the standard of review of a denial of a petition for certification to appeal from a denial of a petition for a writ of habeas corpus. The petitioner must establish a clear abuse of discretion by demonstrating the existence of one of the Lozada criteria. Id. These criteria are "that the issues 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." (Emphasis in original; internal quotation marks omitted.) Id., at 432, 111 S.Ct. 860; Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983).

In order to determine whether the petitioner has demonstrated the existence of one of the Lozada criteria, we examine the validity of the petitioner's initial habeas claim of ineffective assistance of counsel. In doing so, "this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but 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." (Internal quotation marks omitted.) Vines v. Commissioner of Correction, 94 Conn.App. 288, 295, 892 A.2d 312, cert. denied, 278 Conn. 922, 901 A.2d 1222 (2006).

"In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel's performance was deficient.... Second, the [petitioner] must show that the deficient performance prejudiced the defense.... Unless a [petitioner] makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversarial process that renders the result unreliable." (Internal quotation marks omitted.) Vines v. Commissioner of Correction, supra, 94 Conn. App. at 295-96, 892 A.2d 312.

"To satisfy the first prong, that his counsel's performance was deficient, the petitioner must establish that his counsel made errors so serious that [he] was not functioning as the counsel guaranteed the [petitioner] by the Sixth Amendment.... The petitioner must thus show that counsel's representation fell below an objective standard of reasonableness considering all of the circumstances." (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 36 Conn.App. 695, 701, 652 A.2d 1050, cert. denied, 233 Conn. 912, 659 A.2d 183 (1995). "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Strickland v. Washington, supra, 466 U.S. at 689, 104 S.Ct. 2052. The right to counsel is not the right to perfect counsel. Siano v. Warden, 31 Conn.App. 94, 97, 623 A.2d 1035, cert. denied, 226 Conn. 910, 628 A.2d 984 (1993).

The second part of the Strickland analysis requires more than a showing that the errors made by counsel may have had some effect on the outcome of the proceeding. Lewis v. Commissioner of Correction, 89 Conn.App. 850, 856, 877 A.2d 11 (2005), cert. denied, 275 Conn. 905, 882 A.2d 672 (2005). "Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the...