Salmon v. Comm'r of Corr.

• Decision Date: 19 December 2017
• Docket Number: AC 39095
• Citation: 178 Conn.App. 695,177 A.3d 566
• Parties: Marvin SALMON v. COMMISSIONER OF CORRECTION
• Court: Connecticut Court of Appeals

178 Conn.App. 695

177 A.3d 566

Marvin SALMON

v.COMMISSIONER OF CORRECTION

AC 39095

Appellate Court of Connecticut.

Argued September 7, 2017

Officially released December 19, 2017

Naomi T. Fetterman, for the appellant (petitioner).

Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Angela R. Macchiarulo, senior assistant state's attorney, for the appellee (respondent).

DiPentima, C.J., and Prescott and Mihalakos, Js.

MIHALAKOS, J.

The petitioner, Marvin Salmon, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended 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 and (2) improperly concluded that he failed to establish the ineffectiveness of his pretrial counsel. For the reasons set forth herein, we agree with the petitioner, and conclude that the habeas court abused its discretion in denying the petition for certification to appeal. We further conclude that the habeas court made a clearly erroneous factual finding that underlies its determination that pretrial counsel did not render deficient performance. We also determine that the habeas court did not make a determination regarding whether any assumed deficient performance prejudiced the petitioner. Accordingly, we reverse the judgment of the habeas court and remand the case for a new trial.

The record discloses the following facts and procedural history. Our prior decision on the petitioner's direct appeal in State v. Salmon , 66 Conn. App. 131, 133–34, 783 A.2d 1193 (2001), cert. denied, 259 Conn. 908, 789 A.2d 997 (2002), set forth the following facts:

"During the afternoon of October 22, 1994, the victim, Claven Hunt, stood at the end of the driveway at 90 Irving Street [in Hartford] talking to another resident of the building. A red Subaru drove up to the victim, and a black man with his hair in dreadlocks exited from the vehicle. The man fired a .38 caliber handgun at the victim. The victim then ran and his assailant pursued him. The assailant fired several more bullets; two bullets hit the victim in the back and three bullets hit a drain spout and the doors to a garage. Soon thereafter, the police found the unconscious victim, who was later pronounced dead at Saint Francis Hospital and Medical Center in Hartford.

"The red Subaru left the area of the shooting, and an off-duty Hartford police officer, Matt Rivera, noticed it moving quickly through traffic on Blue Hills Avenue. Rivera heard a dispatch that a vehicle matching the description of the red Subaru had been involved in a shooting. Although Rivera did not pursue the vehicle because he was off duty and driving his own car, he informed the dispatcher that while he was driving on Blue Hills Avenue he had noticed a vehicle matching the description of the red Subaru. In addition, Rivera provided the license plate number of the vehicle. The police determined that the vehicle belonged to the [petitioner's] mother and found it parked at the [petitioner's] mother's address.

"The Hartford police picked up the vehicle and brought it to the evidence garage. The police dusted the car for latent fingerprints and found a fingerprint that matched that of the [petitioner]. In addition, the police determined that there were traces of gunshot residue from a .38 caliber bullet in the car.

"Subsequently, Detective Keith Knight handled the investigation of the shooting. During the course of the investigation, the [victim's] family provided Knight with two witnesses to interview, Theodore Owens and Duane Holmes. On the basis of [a photographic identification made by Owens on May 2, 1996], Knight was able to obtain an arrest warrant for the [petitioner]."

During a pretrial conference on November 20, 1998, the petitioner was extended two plea offers. On December 11, 1998, the petitioner formally rejected both plea offers. In February, 2000, following a jury trial, the petitioner was convicted of murder in violation of General Statutes § 53a–54a(a), as enhanced pursuant to General Statutes § 53–202k for using a firearm. Thereafter, the court sentenced the petitioner to a total effective term of forty-five years of incarceration. This court affirmed the petitioner's conviction on direct appeal. See id., at 131, 783 A.2d 1193.

Thirteen years later, on July 17, 2013, the self-represented petitioner filed a petition for writ of habeas corpus. On November 2, 2015, the petitioner, represented by appointed counsel, filed the amended petition operative in this appeal. In the sole count of the amended petition, the petitioner alleged that his constitutional right to the effective assistance of counsel was violated because his pretrial counsel, Attorney Donald Cardwell, failed to inform him of Holmes, the second eyewitness, during plea negotiations.¹ Specifically, the petitioner alleged that Attorney Donald Cardwell's performance was deficient, in that he: "[1] failed to meaningfully explain a plea offer to the petitioner; [2] failed and neglected to properly and adequately advise the petitioner of the desirability of a plea offer; [3] failed to adequately inform and advise the petitioner with regards to the relative strength of the state's case and the possibility of success at trial; and [4] affirmatively misadvised the petitioner regarding the desirability of proceeding to trial." The petitioner further claimed that "but for [his] counsel's deficient performance, the result of [his] criminal proceedings would have been different and more favorable to [him]."

The habeas trial was held on March 3, 2016. Following the trial, the habeas court, Fuger, J. , denied the habeas petition in an oral decision in which it concluded that the petitioner failed to establish that Attorney Donald Cardwell had provided ineffective assistance of counsel.² Thereafter, the petitioner, pursuant to General Statutes § 52–470, petitioned the habeas court for certification to appeal the following issue: "Whether the petitioner's constitutional right to the effective assistance of counsel was violated." The habeas court denied the petition for certification to appeal, and this appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal from the denial of his amended petition for a writ of habeas corpus with respect to his claim of ineffective assistance of counsel. We agree with the petitioner.

"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, [the petitioner] 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 the merits.... To prove that the denial of his petition for certification to appeal constituted 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....

"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 [our Supreme Court] for determining the propriety of the habeas court's denial of the petition for certification." (Citations omitted; internal quotation marks omitted.) Sanders v. Commissioner of Correction , 169 Conn. App. 813, 821–22, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904, 156 A.3d 536 (2017).

As discussed subsequently in part II A of this opinion, we conclude that the habeas court made a clearly erroneous factual finding relating to the issue of whether Attorney Donald Cardwell rendered deficient performance by failing to advise the petitioner of Holmes' existence during pretrial plea negotiations. Because the resolution of the petitioner's underlying claim involves issues that are debatable among jurists of reason and could have been resolved by a court in a different manner, we conclude that the habeas court abused its discretion in denying his petition for certification to appeal from the denial of his amended petition for a writ of habeas corpus.

II

We now turn to the petitioner's substantive claim that the habeas court improperly concluded that he had failed to establish the ineffectiveness of his pretrial counsel. Specifically, he argues that (1) Attorney Donald Cardwell rendered deficient performance in that he failed to advise the petitioner of Holmes' existence during pretrial plea negotiations, and (2) he was prejudiced by Cardwell's deficient performance.

As a preliminary matter, we set forth our standard of review and the legal principles governing ineffective assistance of counsel claims. "[I]t is well established that [a] criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington , [466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984) ]. This right...