Southern v. Comm'r of Corr.

Citation174 Conn.App. 821,167 A.3d 389
Decision Date18 July 2017
Docket Number(AC 38530).
CourtAppellate Court of Connecticut
Parties CLINTON S. v. COMMISSIONER OF CORRECTION

Vishal K. Garg, for the appellant (petitioner).

Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Adrienne Russo, deputy assistant state's attorney, for the appellee (respondent).

Keller, Mullins and Harper, Js.

MULLINS, J.

The petitioner, Clinton S., 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 abused its discretion in denying his petition for certification to appeal because the record established that his criminal trial counsel had rendered ineffective assistance by (1) failing to present evidence of an alternative exculpatory explanation for the allegations made by the victim and (2) failing to investigate adequately and present evidence of the employment records of the petitioner and his wife, M. Additionally, in connection with the claim regarding M.'s employment records, the petitioner claims that the habeas court applied the wrong standard with respect to whether he was prejudiced by counsel's allegedly deficient performance. We conclude that the court did not abuse its discretion in denying the petition for certification to appeal. Accordingly, we dismiss the appeal.

The record discloses the following relevant facts. The petitioner was charged with several offenses, including sexual assault in the first degree in violation of General Statutes § 53a–70(a)(1) and sexual assault in the third degree in violation of General Statutes § 53a–72a(a)(1). The victim, who M's daughter and the petitioner's stepchild, alleged that the petitioner sexually assaulted her between July, 2003, and January, 2005. She claimed that the assaults occurred when she arrived home from school around 2:45 p.m. and that it happened "basically all the time." The victim stated that, during the relevant time period, the petitioner was the only one home and that, if her siblings were home, the petitioner would lock them in a bedroom and tell them not to come out until told to do so.

The victim reported the sexual assaults to Luz Garcia. The victim and Garcia met through the New Haven Police Department's youth program, for which Garcia was the coordinator. On January 24, 2006, the victim and Garcia engaged in a conversation in which the victim disclosed to Garcia that the petitioner had sexually assaulted her. Garcia told the victim that the petitioner was a registered sex offender and that if the petitioner ever touched her inappropriately, he would go to jail. Garcia reported the abuse to the police.

At trial, the petitioner was represented by Attorneys Scott Jones and Tejas Bhatt. He elected a jury trial. Trial commenced on July 23, 2009. Evidence closed on July 28, 2009. Then, on July 31, 2009, the third day of jury deliberations and before the jury had reached a verdict, the petitioner decided to enter a guilty plea under the Alford1 doctrine to the charges of sexual assault in the first degree and sexual assault in the third degree.

In response to questions by the trial court, the petitioner stated that he understood that he could not revoke his plea, that he was satisfied with his representation, and that he was pleading guilty voluntarily. When asked by the trial court one final time whether he was sure that he wanted to plead guilty, the petitioner responded, "Your Honor, I don't have a choice." In response, the trial court stated, "You don't have a choice because you're afraid the jury is [going to] come back and convict you.... No one is forcing you, right?" The petitioner responded, "Nobody's forcing me, Your Honor." The trial court then asked, "You don't have a choice because you're between a rock and hard place [and] you're taking this as a way out, right?" The petitioner answered, "That's right." After accepting the petitioner's plea, the court sentenced him to a total effective sentence of twenty years incarceration, execution suspended after fifteen years, followed by ten years probation.

On January 20, 2015, the petitioner filed an amended petition for a writ of habeas corpus, in which he alleged numerous ways in which his trial counsel had rendered ineffective assistance. The only claims relevant to this appeal, however, are the petitioner's claims that his trial counsel rendered ineffective assistance by failing "to adequately present an alternative innocent explanation for the [victim's] allegations of sexual abuse," failing to "investigate and present evidence concerning the petitioner's employment records," and failing "to investigate and present evidence concerning [M.'s] employment records." On October 13, 2015, the habeas court denied the amended petition. The petitioner then filed a petition for certification to appeal, which the habeas court denied. This appeal followed. Additional facts will be set forth as necessary.

On appeal, the petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal because the record established that his trial counsel had rendered ineffective assistance primarily in two ways. First, the petitioner claims that his trial counsel rendered ineffective assistance by failing to present evidence of the conversation between the victim and Garcia. He argues that as a result of that conversation, the victim learned from Garcia that the petitioner could go to jail if he inappropriately touched her. The petitioner claims that evidence of this conversation would have supported the alternative exculpatory explanation that the victim fabricated the allegations of sexual assault only after she learned from Garcia that he could be incarcerated for touching her inappropriately.

Second, the petitioner claims that his trial counsel rendered ineffective assistance by failing to investigate adequately and present evidence of the employment records of the petitioner and M. Specifically, he argues that these records would have undermined the victim's allegations and credibility by showing that the petitioner's opportunity to be alone with the victim was either limited or nonexistent. With respect to M.'s employment records in particular, the petitioner also claims that the habeas court applied the wrong prejudice standard when it applied the Strickland standard instead of the Strickland Hill standard. We are not persuaded.

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....

"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....

"[As it relates to the petitioner's substantive claims] [o]ur standard of review of the 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." (Internal quotation marks omitted.) Mourning v. Commissioner of Correction , 169 Conn.App. 444, 448–49, 150 A.3d 1166 (2016), cert. denied, 324 Conn. 908, 152 A.3d 1246 (2017).

"[I]n order to determine whether the petitioner has demonstrated ineffective assistance of counsel [when the conviction resulted from a guilty plea], we apply the two part test annunciated by the United States Supreme Court in Strickland and Hill .... In Strickland , which applies to claims of ineffective assistance during criminal proceedings generally, the United States Supreme Court determined that the claim must be supported by evidence establishing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance. Strickland v. Washington , [466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ].... Under the test in Hill , in which the United States Supreme Court modified the prejudice standard of the Strickland test for claims of ineffective assistance when the conviction resulted from a guilty plea, the evidence must demonstrate that there is a reasonable probability that, but for counsel's errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart , [474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ]." (Citations omitted; emphasis omitted; internal quotation marks omitted.)

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