Roger B. v. Comm'r of Corr.

• Decision Date: 12 May 2015
• Docket Number: No. 36149.,36149.
• Citation: 157 Conn.App. 265,116 A.3d 343
• Court: Connecticut Court of Appeals
• Parties: ROGER B. v. COMMISSIONER OF CORRECTION.

157 Conn.App. 265

116 A.3d 343

ROGER B.^*

v.COMMISSIONER OF CORRECTION.

No. 36149.

Appellate Court of Connecticut.

Argued Jan. 13, 2015.

Decided May 12, 2015.

Deren Manasevit, assigned counsel, for the appellant (petitioner).

James M. Ralls, assistant state's attorney, with whom, on the brief, were David Shepack, state's attorney, and Brenda L. Hans, assistant state's attorney, for the appellee (respondent).

BEACH, ALVORD and BISHOP, Js.

Opinion

ALVORD, J.

The petitioner, Roger B., 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 habeas court (1) abused its discretion in denying his petition for certification to appeal, (2) improperly rejected his claim that his trial counsel was ineffective in that he failed to raise a statute of limitations affirmative defense, and (3) improperly rejected his claim that his trial counsel was ineffective in that he failed to consult and present an expert. We agree with the petitioner's first and second claims and, accordingly, reverse in part the judgment of the habeas court.

The following facts and procedural history underlie the petitioner's appeal. The petitioner was convicted after a jury trial of one count of sexual assault in the first degree in violation of General Statutes § 53a–70 (a)(2), two counts of sexual assault in the fourth degree in violation of General Statutes § 53a–73a (a)(1)(A), and three counts of risk of injury to a child in violation of General Statutes § 53–21(2). The petitioner was sentenced to a total effective term of twenty-nine years incarceration, execution suspended after twenty-three years, with thirty years of probation. The petitioner appealed from the judgment of conviction.

Our Supreme Court, in affirming the conviction, concluded that the jury reasonably could have found the following facts: “In 1995, the [petitioner] lived with his girlfriend, J.T., and her three children; two girls, S and J, and one boy, K. S was eight years old and J was four years old.¹ There were two bedrooms on the first floor of the house. S and J shared a bedroom, as did the [petitioner], J.T. and K. The living room and kitchen were located on the second floor. Almost nightly, the [petitioner] would wake up S and take her upstairs to the living room, where he would sexually assault her.²

“In May, 1996, the [petitioner], J.T. and her children and the [petitioner's] mother moved to a new house. The kitchen, living room and S's bedroom were on the first floor of the house. There were three bedrooms on the second floor. The [petitioner] and J.T. shared one bedroom, and J and K shared another. The [petitioner's] mother also slept on the second floor. In the new house, the [petitioner] would wake up J and take her to the living room or to his bedroom and sexually assault her.³

“In the fall of 1999, J.T. entered a psychiatric ward. S, J and K lived with the [petitioner], who was their sole caretaker⁴ until representatives from the department of children and families (department) removed the children because the [petitioner] was not a relative. In February, 2000, the department placed J in a foster home. The department subsequently placed S in the same foster home. A few months after living in the foster home, S told her boyfriend that she had been abused by the [petitioner]. S later told her foster mother and her therapist that the [petitioner] had abused her. When J also told her foster mother that the [petitioner] had abused her, the foster mother reported the allegations to the department.” State v. Roger B., 297 Conn. 607, 609–10, 999 A.2d 752 (2010). Additional facts will be set forth as necessary.

On August 21, 2008, the petitioner filed his initial petition for a writ of habeas corpus. The petitioner filed an amended petition on August 25, 2011. In his amended petition, the petitioner alleged that his trial counsel, Christopher Cosgrove, had rendered ineffective assistance in numerous ways. Relevant to this appeal are the petitioner's allegations that his trial counsel had rendered ineffective assistance in failing to (1) raise a statute of limitations affirmative defense, and (2) consult and retain an expert to review the protocol used in forensic interviews conducted with the two victims. The court held an evidentiary hearing on the petition. In a memorandum of decision filed August 16, 2013, the court denied the petitioner's amended petition. After the court denied the petition for a writ of habeas corpus, the petitioner filed a petition for certification to appeal to this court, which was denied on August 28, 2013. On September 30, 2013, the petitioner filed the present appeal.⁵

On appeal, the petitioner claims that the habeas court improperly concluded that he received effective assistance of counsel. We first set forth our standard of review. “Faced with the habeas court's denial of certification to appeal, a petitioner's first burden is to demonstrate that the habeas court's ruling constituted an abuse of discretion.... A petitioner may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of reason ... [the] court could resolve the issues [in a different manner] ... or ... the questions are adequate to deserve encouragement to proceed further.... The required determination may be made on the basis of the record before the habeas court and the applicable legal principles.” (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Johnson v. Commissioner of Correction, 285 Conn. 556, 564, 941 A.2d 248 (2008).

“In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous. In other words, we review the petitioner's substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria ... adopted by this court for determining the propriety of the habeas court's denial of the petition for certification. Absent such a showing by the petitioner, the judgment of the habeas court must be affirmed....

“Our standard of review of a habeas court's judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, 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.” (Citation omitted; internal quotation marks omitted.) Holloway v. Commissioner of Correction, 145 Conn.App. 353, 363–64, 77 A.3d 777 (2013).

“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings.... This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution.... As enunciated in Strickland v. Washington, [466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], this court has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel.... 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.... To satisfy the prejudice prong, [the petitioner] must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.... The claim will succeed only if both prongs are satisfied.... [A] reviewing court can find against a petitioner on either ground, whichever is easier.” (Internal quotation marks omitted.) Gonzalez v. Commissioner of Correction, 122 Conn.App. 271, 279–80, 999 A.2d 781, cert. denied, 298 Conn. 913, 4 A.3d 831 (2010).

In order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal, we must consider the merits of the petitioner's underlying claims that his trial counsel provided ineffective assistance. With the foregoing principles in mind, we turn to the petitioner's claims.

I

The petitioner first claims that his trial counsel's failure to assert a statute of limitations affirmative defense constituted ineffective assistance of counsel. The petitioner argues, pursuant to State v. Crawford, 202 Conn. 443, 521 A.2d 1034 (1987), and State v. Ali, 233 Conn. 403, 660 A.2d 337 (1995), that the issuance of the warrant for his arrest did not toll the statute of limitations because the warrant was not executed without unreasonable delay. The basis for the petitioner's claim is that although the warrant had been issued on July 6, 2005, within the applicable statute of limitations, the warrant was not executed until January 24, 2007, beyond the five year period established by General Statutes § 54–193a, entitled “Limitation of prosecution for offenses involving sexual abuse of minor.”⁶ The petitioner asserts that his trial counsel's failure to assert this affirmative defense rendered counsel's performance deficient. He claims that had his trial counsel asserted the defense, the outcome of the proceedings would have been different and argues that “a defendant suffers prejudice when defense counsel fails to assert a meritorious statute of limitations defense that could put an end to the prosecution.”

The following additional facts as found by the habeas court are relevant to the petitioner's claim. The offenses...