Vivo v. Commissioner of Correction

• Decision Date: 12 July 2005
• Docket Number: (AC 24654).
• Court: Connecticut Court of Appeals
• Parties: JOHN VIVO III v. COMMISSIONER OF CORRECTION.

90 Conn. App. 167

876 A.2d 1216

JOHN VIVO III v. COMMISSIONER OF CORRECTION.

(AC 24654).

Appellate Court of Connecticut.

Argued March 29 2005.

Officially released July 12, 2005.

Lavery, C. J., and Schaller and Gruendel, Js.

Richard W. Callahan, special public defender, with whom, on the brief, was Gerald E. Bodell, special public defender, for the appellant (petitioner).

C. Robert Satti, Jr., senior assistant state's attorney, with whom, on the brief, was Jonathan C. Benedict, state's attorney, for the appellee (respondent).

Opinion

LAVERY, C. J.

The petitioner, John Vivo III, appeals from the judgment of the habeas court denying in part his petition for a writ of habeas corpus. On appeal, he claims that (1) the court improperly concluded that he received effective assistance of counsel and (2) his sentence under General Statutes § 53-202k should be vacated. We affirm in part and reverse in part the judgment of the habeas court.

As noted by the court, the basic facts of this case are not in dispute. "On or about February 23, 1994, three males entered an apartment at the Evergreen Apartments in Bridgeport, Connecticut, and fired gunshots at a male victim, who was fatally shot, and at a female victim, Yolanda Martinez, seriously wounding her. She survived and testified at probable cause hearings and at two trials that the petitioner was one of the individuals who had fired the gunshots. Later that evening, officers of the Bridgeport police [department] knocked on the door of the apartment of the petitioner, who answered it and permitted the officers to enter. Shortly thereafter, he was arrested and handcuffed."

The petitioner was convicted by a jury of murder in violation of General Statutes § 53a-54a, assault in the first degree in violation of General Statutes § 53a-59 and commission of a class A and class B felony with a firearm in violation of § 53-202k. The petitioner was sentenced to sixty years incarceration for murder, ten years for assault in the first degree and five years for commission of a class A and class B felony with a firearm. The trial court ordered the sentences to run consecutively for a total effective term of seventy-five years. The petitioner appealed from his conviction, which our Supreme Court affirmed in State v. Vivo, 241 Conn. 665, 697 A.2d 1130 (1997). Subsequently, the petitioner filed a petition for a writ of habeas corpus, asserting claims of ineffective assistance of both his trial and appellate counsel.¹ The habeas court denied the petition. The court subsequently granted his petition for certification to appeal, and this appeal followed.

I

The petitioner claims that the court improperly concluded that he received effective assistance of counsel both at his trial and on appeal. We disagree.

A

The petitioner first argues that the court improperly found that he received effective assistance from his trial counsel. In his posttrial memorandum of law in support of his petition, the petitioner stated in regard to that claim: "The petitioner acknowledges that the evidence adduced at trial is not sufficient to sustain a verdict in his favor, and abandons the claim." The court acknowledged that statement in its memorandum of decision. We agree with the court that the petitioner expressly abandoned that claim and decline to afford it review. See State v. Johnson, 82 Conn. App. 777, 794 n.12, 848 A.2d 526 (2004).

B

The petitioner also claims that the court improperly found that he received effective assistance from his appellate counsel. He contends that his appellate counsel was ineffective, that counsel's representation fell below the required standard of reasonable competence in that counsel failed to brief a state constitutional claim regarding the suppression of evidence and that the petitioner was prejudiced by that failure. We disagree.

Before considering the petitioner's specific claims, we first address the applicable standard of review. "In Strickland v. Washington, 466 U.S. 668, 671, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court articulated a two part analysis for evaluating constitutional claims of ineffective assistance of counsel. First, the [petitioner] must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the [petitioner] by the Sixth Amendment. Second, the [petitioner] must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable. Id., 687. Our Supreme Court has adopted that two part analysis in reviewing claims of ineffective assistance of appellate counsel. Bunkley v. Commissioner of Correction, 222 Conn. 444, 455, 610 A.2d 598 (1992); Sekou v. Warden, 216 Conn. 678, 690, 583 A.2d 1277 (1990); Valeriano v. Bronson, 209 Conn. 75, 83-84, 546 A.2d 1380 (1988).

"The first part of the Strickland analysis requires the petitioner to establish that appellate counsel's representation fell below an objective standard of reasonableness considering all of the circumstances. 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 [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland v. Washington, supra, 466 U.S. 689. The right to counsel is not the right to perfect representation. Siano v. Warden, 31 Conn. App. 94, 97, 623 A.2d 1035, cert. denied, 226 Conn. 910, 628 A.2d 984 (1993). While an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. A brief that raises every colorable issue runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions. . . . McIver v. Warden, 28 Conn. App. 195, 202, 612 A.2d 103, cert. denied, 224 Conn. 906, 615 A.2d 1048 (1992). Indeed, [e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues. . . . Valeriano v. Bronson, supra, 209 Conn. 89. Most cases present only one, two, or three significant questions. . . . The effect of adding weak arguments will be to dilute the force of the stronger ones. . . . State v. Pelletier, 209 Conn. 564, 567, 552 A.2d 805 (1989). Our Supreme Court has stated that [i]t is possible to leave out a dispositive issue on appeal and nevertheless, to have furnished a petitioner with adequate counsel under the sixth amendment. Valeriano v. Bronson, supra, 87. Finally, [i]f the issues not raised by his appellate counsel lack merit, [the petitioner] cannot sustain even the first part of this dual burden since the failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation. Sekou v. Warden, supra, 216 Conn. 690.

"The seminal case of Bunkley v. Commissioner of Correction, supra, 222 Conn. 444, considered the prejudice prong of the Strickland analysis in claims of ineffective assistance of appellate counsel. Rejecting the petitioner's contention that the proper analytical focus is the probable result of the appeal, the Bunkley court explained that the proper focus instead is the result of the trial. Id., 454. To satisfy the prejudice prong, a petitioner must, thus, establish that, as a result of appellate counsel's deficient performance, there remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal. Put another way, he must establish that, because of the failure of his appellate counsel to raise a [particular] claim, there is a reasonable probability that he remains burdened by an unreliable determination of his guilt. Id. In order to prevail on a claim of ineffective assistance of appellate counsel, therefore, a habeas petitioner must show not only that his appeal would have been sustained but for counsel's deficient performance, but also that there is a reasonable probability that the trial verdict would have been different.

"Our review of the judgment of the habeas court is carefully circumscribed. The underlying historical facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . Whether the representation a [petitioner] 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." (Internal quotation marks omitted.) Mozell v. Commissioner of Correction, 87 Conn. App. 560, 562-65, 867 A.2d 51, cert. denied, 273 Conn. 934, A.2d (2005). With that standard in mind, we turn to the petitioner's claim.

The petitioner asserts that his appellate counsel provided ineffective assistance by failing to include a state constitutional claim in his brief, in addition to the federal constitutional claim raised on appeal. This issue arises out of an incident that occurred when members of the Bridgeport police department, along with the petitioner's father, went to the petitioner's apartment to arrest him. After handcuffing the petitioner, the residence was searched to discern whether any of the other persons involved were within the apartment. The petitioner alleges that this was an illegal search used as a fishing expedition to obtain information to gain a subsequent search warrant and that nineteen nine millimeter bullets discovered during this subsequent search were used as evidence against him at trial. In denying the petitioner's motion to suppress this evidence, the trial court found that...