Toccaline v. Commissioner of Correction

• Decision Date: 06 January 2004
• Docket Number: (AC 23544).
• Citation: Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 837 A.2d 849 (Conn. App. 2004)
• Court: Connecticut Court of Appeals
• Parties: LENNARD TOCCALINE v. COMMISSIONER OF CORRECTION

80 Conn. App. 792

837 A.2d 849

LENNARD TOCCALINE v. COMMISSIONER OF CORRECTION

(AC 23544).

Appellate Court of Connecticut.

Argued October 17, 2003.

Officially released January 6, 2004.

Bishop, West and DiPentima, Js. Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, were Christopher Morano, chief state's attorney, and Jo Anne Sulik, assistant state's attorney, for the appellant (respondent).

Conrad Ost Seifert, special public defender, for the appellee (petitioner).

Opinion

BISHOP, J.

The respondent commissioner of correction appeals from the judgment of the habeas court granting the amended petition for a writ of habeas corpus filed by the petitioner, Lennard Toccaline. The habeas court based its decision on the petitioner's claims of ineffective assistance of trial and appellate counsel. The respondent claims that the court (1) misapplied the standard for determining whether trial counsel rendered effective legal assistance, (2) improperly considered claims not raised in the petition and (3) incorrectly determined that the petitioner had established ineffective assistance of appellate counsel. We reverse the judgment of the habeas court.

In the underlying criminal matter, the petitioner was charged in a two part information. In the first part, he was charged with one count of sexual assault in the first degree, two counts of sexual assault in the fourth degree and three counts of risk of injury to a child. In the second part, he was charged with being a persistent dangerous felony offender. After a trial by jury, he was found guilty of one count each of sexual assault in the first degree and sexual assault in the fourth degree, and three counts of risk of injury to a child. Following a court trial, the petitioner was found guilty on the second part of the information.¹ He later was sentenced to forty years incarceration, execution suspended after twentyfive years, and ten years probation. In the petitioner's direct appeal to the Supreme Court, the judgment was affirmed. State v. Toccaline, 258 Conn. 542, 783 A.2d 450 (2001).

In its opinion, the Supreme Court set forth the factual background as follows: "On the basis of the evidence presented, the jury reasonably could have found the following facts. The victim, MC,² was born on May 7, 1984. In 1996, the [petitioner], who was thirty-five years old, was the boyfriend of the victim's aunt. The [petitioner] and the victim's aunt lived together in a house near a lake, where MC sometimes visited. Usually, the [petitioner] went to MC's house to pick her up and bring her to her aunt's house. During the visits, MC and the [petitioner] often played video games or went fishing together.

"Three acts of sexual contact by the [petitioner] occurred during the period from June, 1996, through September, 1996, when MC was twelve years old. In the first incident, the [petitioner] kissed MC's breasts and vaginal area. In the second incident, which occurred in August, 1996, when the [petitioner] and MC were fishing from a boat on the lake, the [petitioner] placed MC's hand on his penis. He then put his hand over hers and manually stimulated himself until he ejaculated. During the third incident, which occurred in September, 1996, the [petitioner] invited MC to come to his bed. He then got on top of her, pinned her hands above her head, and penetrated her vagina with his penis. MC did not tell her mother or aunt about the events with the [petitioner] because she was afraid of the [petitioner]. In October, 1996, MC and her family moved to another state.

"In February, 1998, while cleaning MC's bedroom, her mother found a letter written to MC from a man named W,³ who was a friend of MC's family. W had begun to baby-sit for MC and her siblings in the summer of 1997. At that time, W was thirty-two years old and MC was thirteen. In the letter, W told MC that he wanted to hold her and take her pain away.

"MC's mother was concerned about the contents of the letter and confronted W about his relationship with MC. Her mother also confronted MC about her relationship with W. Although she denied any sexual contact with W, MC told her mother about the incidents that had occurred with the [petitioner] during the summer of 1996. MC also had told W about the [petitioner's] conduct prior to disclosing this information to her mother.

"The [petitioner] gave a statement to the police in which he responded to MC's allegations of sexual abuse. In the statement, the [petitioner] claimed that he and MC often `horse played' together. The [petitioner] admitted that he may have had sexual contact with MC during this horseplay, although, he claimed, MC never objected to such contact and that the contact did not constitute intercourse. The statement was entered into evidence and read aloud to the jury." Id., 545-47.

Following his unsuccessful appeal, the petitioner brought his petition for a writ of habeas corpus. By memorandum of decision filed September 12, 2002, the court granted the petition, finding that both trial and appellate counsel had been ineffective, and that their ineffectiveness entitled the petitioner to a new trial. This appeal followed.

As a prelude to our discussion of the issues on appeal, we set forth our standard of review as well as an overview of relevant habeas corpus law. "Our standard of review in a habeas corpus proceeding challenging the effective assistance of trial counsel is well settled. Although a habeas court's findings of fact are reviewed under the clearly erroneous standard of review . . . [w]hether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. . . . As such, that question requires plenary review by this court unfettered by the clearly erroneous standard." (Citation omitted; internal quotation marks omitted.) Alvarez v. Commissioner of Correction, 79 Conn. App. 847, 848, 832 A.2d 102, cert. denied, 266 Conn. 933, 837 A.2d 804 (2003).

The petitioner's right to the effective assistance of counsel is assured by the sixth and fourteenth amendments to the federal constitution, and by article first, § 8, of the constitution of Connecticut. "In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction. . . . That requires the petitioner to show (1) that counsel's performance was deficient and (2) 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 adversary process that renders the result unreliable." (Citations omitted; internal quotation marks omitted.) Minnifield v. Commissioner of Correction, 62 Conn. App. 68, 70-71, 767 A.2d 1262, cert. denied, 256 Conn. 907, 772 A.2d 596 (2001).

To prove that his counsel's performance was deficient, the petitioner must demonstrate that trial counsel's representation fell below an objective standard of reasonableness. See Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 206 (1989). Competent representation is not to be equated with perfection. "The constitution guarantees only a fair trial and a competent attorney; it does not ensure that every conceivable constitutional claim will be recognized and raised." (Internal quotation marks omitted.) Jeffrey v. Commissioner of Correction, 36 Conn. App. 216, 219, 650 A.2d 602 (1994). "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.. . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Goodrum v. Commissioner of Correction, 63 Conn. App. 297, 300-301, 776 A.2d 461, cert. denied, 258 Conn. 902, 782 A.2d 136 (2001).

With respect to the prejudice component of the Strickland test, the petitioner must demonstrate that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, supra, 466 U.S. 687. "It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings. . . . Rather, [t]he [petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." (Citations omitted; internal quotation marks omitted.) Fair v. Warden, 211 Conn. 398, 408, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S. Ct. 512, 107 L. Ed. 2d 514 (1989).

With those principles in mind, we now turn to the respondent's claims. Additional facts will be set forth as appropriate.

I

The respondent's first claim is that in gauging the effectiveness of the petitioner's trial counsel in the underlying criminal trial, the habeas court improperly applied the standard for determining effectiveness. Because the habeas court found...