Pires v. Commissioner of Correction , 174 Conn. App. 121 ( 2017 )

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MICHAEL PIRES, SR. v. COMMISSIONER
OF CORRECTION
(AC 37693)
Sheldon, Beach and Pellegrino, Js.
Argued January 17—officially released June 20, 2017
(Appeal from Superior Court, judicial district of
Tolland, Oliver, J.)
Peter Tsimbidaros, for the appellant (petitioner).
Paul J. Narducci, senior assistant state’s attorney,
with whom, on the brief, was Michael L. Regan, state’s
attorney, for the appellee (respondent).
Opinion
BEACH, J. The petitioner, Michael Pires, Sr., appeals
from the judgment of the habeas court denying his
amended petition for a writ of habeas corpus. He claims
that the habeas court erred in failing to conclude that his
trial lawyers provided ineffective assistance by failing
to adequately convey to the trial court his desire to
represent himself.1 We affirm the judgment of the
habeas court.2
The following facts and procedural history, drawn
from the Supreme Court’s opinion in the petitioner’s
direct appeal; see State v. Pires, 310 Conn. 222, 77 A.3d
87 (2013); are relevant to this appeal. The petitioner
was charged with murder in connection with a 2004
drug related homicide. Id., 225. After several unsuccess-
ful attempts to dismiss his trial counsel, Special Public
Defender Linda Sullivan, the petitioner and Sullivan
attended a hearing on December 20, 2005, before the
trial court, Handy, J. Id., 225–26. During the hearing,
Sullivan informed Judge Handy that the petitioner had
refused to discuss the case with her. Id., 233. The peti-
tioner then indicated that he wanted to ‘‘ ‘fire’ ’’ Sullivan.
Id., 233–34. After explaining to the petitioner that he
was entitled to an attorney but not necessarily to an
attorney of his choice, Judge Handy instructed the peti-
tioner and Sullivan to convene privately, work things
out, and then return to the courtroom. Id., 234–35. When
they returned, Sullivan told Judge Handy: ‘‘Well, I did
go downstairs and attempt to talk to [the petitioner].
He did want to discuss strategy with me. He indicated
now that he wishes to represent himself in this matter.
I informed him that I didn’t think Your Honor was
going to allow him to represent himself on a murder
charge simply because that would be much too danger-
ous and it would not be in his best interest. And that’s
about where we stand, Your Honor.’’ (Emphasis altered;
internal quotation marks omitted.) Id., 235. The peti-
tioner did not reiterate to the court a desire to represent
himself, nor did Judge Handy inquire further into the
matter. Id.Sullivan subsequently filed a motion to withdraw as
counsel and, on March 8, 2006, Judge Handy granted
her motion. Judge Handy appointed attorneys Bruce
Sturman and Kevin Barrs to represent the petitioner.
Id., 235. The petitioner filed a pro se motion to dismiss
Sturman and Barrs at the start of trial on August 2,
2006, but withdrew the motion the following day. Id.,
226. Following a jury trial, the petitioner was convicted
of murder.
Prior to sentencing, the petitioner filed a handwritten
‘‘motion to dismiss,’’ which the trial court, Schimelman,
J., addressed at the October 13, 2006 sentencing hear-
ing. Id., 250. During argument on the motion, the peti-
tioner levied complaints about the evidence and facts
of the case and indicated that he wanted to ‘‘dismiss’’
Barrs and Sturman prior to the sentencing portion of
the hearing. Id. Judge Schimelman, interpreting the peti-
tioner’s motion as a request for self-representation,
denied the motion3 and sentenced the petitioner to sixty
years imprisonment. Id., 225, 250–51. The Supreme
Court upheld the petitioner’s conviction on direct
appeal.4 Id., 255.
Thereafter, the petitioner filed an amended petition
for a writ of habeas corpus, alleging a single claim of
ineffective assistance of counsel. The petitioner alleged
that he was represented at trial by Sullivan, Sturman,
and Barrs, and that their ‘‘performance was deficient
because they failed to adequately convey to the court
that the petitioner wished to represent himself.’’ The
petition further alleged that there is a reasonable proba-
bility that, ‘‘but for the petitioner’s trial counsel’s defi-
cient performance,’’ the result of the criminal
proceedings would have been different.
The habeas court held a trial on October 31, 2014,
at which Sullivan, Sturman, and Barrs testified. The
petitioner did not testify. The habeas court denied the
petition in a memorandum of decision filed January 16,
2015. After concluding that the petitioner’s ineffective
assistance claim was collaterally estopped by the
Supreme Court’s decision on direct appeal; see footnote
2 of this opinion; the habeas court also rejected the
claim on the merits. Applying the two-pronged test set
forth in Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the habeas
court found that the petitioner’s trial counsel did not
perform deficiently by failing adequately to inform the
trial court of his desire for self-representation.5 The
habeas court reasoned that the record reflected that the
petitioner was concerned not with representing himself,
but, rather, with being assigned counsel of his choosing,
obtaining discovery, meeting with his attorneys,
addressing the court, and claiming that various court
personnel were conspiring against him. Thus, the
habeas court concluded that trial counsel did not per-
form deficiently because, other than at sentencing,
‘‘there was no clear and unequivocal invocation for
them to convey to the court . . . .’’ Following a grant
of certification to appeal, this appeal followed.
The petitioner claims that the habeas court erred in
concluding that he did not receive ineffective assistance
of counsel. We disagree.
‘‘The habeas court is afforded broad discretion in
making its factual findings, and those findings will not
be disturbed unless they are clearly erroneous. . . .
Historical facts constitute a recital of external events
and the credibility of their narrators. . . . Accordingly,
[t]he habeas judge, as the trier of facts, is the sole arbiter
of the credibility of witnesses and the weight to be
given to their testimony. . . . The application of the
habeas court’s factual findings to the pertinent legal
standard, however, presents a mixed question of law
and fact, which is subject to plenary review.’’ (Citations
omitted; internal quotation marks omitted.) Gaines v.
Commissioner of Correction, 306 Conn. 664, 678, 51
A.3d 948 (2012).
Pursuant to Strickland, ‘‘[a] claim of ineffective assis-
tance of counsel consists of two components: a perfor-
mance prong and a prejudice prong. To satisfy the
performance prong . . . the petitioner must demon-
strate that his attorney’s representation was not reason-
ably competent or within the range of competence
displayed by lawyers with ordinary training and skill
in the criminal law. . . . To satisfy the prejudice prong,
a claimant 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.’’ (Internal quotation marks omitted.) Fernan-
dez v. Commissioner of Correction, 291 Conn. 830, 835,
970 A.2d 721 (2009).
We agree with the habeas court that the petitioner
failed to demonstrate that Sullivan, Sturman or Barrs
performed deficiently by failing to adequately convey
to the trial court his desire for self-representation. We
note that, as a matter of law, the petitioner’s ineffective
assistance claim fails in the absence of evidence estab-
lishing that he made a clear and unequivocal request
for self-representation, and that his trial counsel either
failed to inform the trial court of the request or did so
in a manner that did not capture the unequivocal nature
of the request. In other words, the mere fact that trial
counsel did not inform the trial court that the petitioner
made a clear and unequivocal request for self-represen-
tation does not form the basis for an ineffective assis-
tance claim. The petitioner must demonstrate that he
actually made such a request and that his attorneys
failed to properly relay it.
The habeas court correctly found that the petitioner
failed to carry his burden of showing that his trial coun-
sel failed to inform the trial court of a clear, unequivocal
request for self-representation. With regard to Sullivan,
the record reflects that, after convening with the peti-
tioner at the December 20, 2005 hearing, she informed
Judge Handy that the petitioner ‘‘indicate[s] now that
he wishes to represent himself in this matter. I informed
him that I didn’t think Your Honor was going to allow
him to represent himself on a murder charge simply
because that would be much too dangerous and it would
not be in his best interest.’’6 (Emphasis omitted; internal
quotation marks omitted.) State v. Pires, supra, 310
Conn. 235. There was no evidence in the habeas record
that this representation was inaccurate. The petitioner
did not testify at the habeas trial. Sullivan testified that
the petitioner mentioned self-representation at the end
of their conversation in an offhand manner, that she
was unsure whether the request was genuine because
the petitioner was angry and irrational at the time, and
that she could not explore the issue because the peti-
tioner refused to speak with her further. Sullivan further
testified that, although the petitioner repeatedly had
tried to fire her, the only time he expressed a desire to
represent himself was during that December 20, 2005
meeting. Therefore, the record establishes only that
the petitioner made a single offhand reference to self-
representation, which Sullivan promptly conveyed to
the trial court. She did not perform deficiently simply
because she characterized the petitioner’s request in a
manner that did not prove favorable to the petitioner’s
subsequent claim that he had clearly and unequivocally
invoked his right to self-representation.
There was also no evidence that Barrs or Sturman
performed deficiently. They both testified at the habeas
trial that the petitioner never expressed a desire to
represent himself. They further testified that they did
not construe any of the petitioner’s pro se motions to
be requests for self-representation. Even if they had,
however, it would not matter because those written
motions had already been filed with the court. Accord-
ingly, the habeas court properly denied the petitioner’s
amended petition for a writ of habeas corpus on the
ground that he failed to satisfy the performance prong
of Strickland.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The petitioner makes a number of other claims in his appellate brief
that we need not address in this appeal—specifically, that his attorneys (1)
provided him with incorrect advice as to whether the trial court would
permit him to represent himself, (2) failed to advise him to invoke his right
to self-representation more clearly and more unequivocally than he did, (3)
failed further to pursue his right to self-representation, (4) failed to advise
him that the trial court would not consider his statements on the record to
be a clear and unequivocal invocation of the right, and (5) failed to advise
him that accepting replacement counsel could be perceived as a waiver of
his right to self-representation. Although the petitioner presented testimony
and argument on these claims at the habeas trial, he did not allege them in
his amended petition for a writ of habeas corpus, nor did the habeas court
address them in its memorandum of decision.
‘‘This court is not bound to consider claimed errors unless it appears on
the record that the question was distinctly raised . . . and was ruled upon
and decided by the court adversely to the appellant’s claim. . . . To review
[claimed errors] now would amount to an ambuscade of the [habeas] judge.
. . . This court is not compelled to consider issues neither alleged in the
habeas petition nor considered at the habeas proceeding . . . .’’ (Citation
omitted; emphasis altered; internal quotation marks omitted.) Smith v. Com-
missioner of Correction, 98 Conn. App. 690, 693, 910 A.2d 999 (2006), cert.
denied, 281 Conn. 910, 916 A.2d 52 (2007).
We instead confine our review to the single claim of ineffective assistance
that was distinctly alleged and ruled upon by the habeas court—namely,
that the petitioner’s trial counsel ‘‘failed to adequately convey to the [trial]
court that the petitioner wished to represent himself.’’
2
As an alternative ground for affirmance, the respondent, the Commis-
sioner of Correction, contends that the habeas court properly concluded
that the petitioner’s ineffective assistance claim was collaterally estopped
by our Supreme Court’s determination in the petitioner’s direct appeal that
the petitioner never clearly and unequivocally invoked his right to self-
Because we agree with the habeas court’s determination that the petitioner
did not receive ineffective assistance, we need not address collateral
estoppel.
3
In denying the petitioner’s motion, Judge Schimelman stated: ‘‘There is
nothing that you said to me that leads me to believe that I [should dismiss]
them at this time. In fact, it would be to your disadvantage, in my mind, to
dismiss them because they have the ability to explain to the court in a way
that perhaps you, as a layperson, [do] not have, those matters that need to
be discussed during this sentencing. And it would be counterproductive, in
my mind, to dismiss them and to leave you without representation or to
make the determination that this sentencing should be delayed. I think
neither is necessary, nor neither would be beneficial to you and, or, to the
family of the victims in this case and, or, to the judicial process. Accordingly,
your motion to dismiss your attorneys is denied.’’ (Internal quotation marks
omitted.) State v. Pires, supra, 310 Conn. 251.
4
On direct appeal, the petitioner claimed that the trial court violated his
constitutional right of self-representation because he clearly and unequivo-
cally invoked the right both at the December 20, 2005 hearing through
Sullivan’s comments to Judge Handy, and at the sentencing hearing through
his written motion to dismiss and oral argument on that motion. State v.
Pires, supra, 310 Conn. 229–30. With respect to the December 20, 2005
hearing, the Supreme Court held that Sullivan’s statements did not amount
to a clear and unequivocal invocation of the right to self-representation; id.,
238; and that even if they had, the petitioner subsequently waived the right
when he accepted the appointment of Sturman and Barrs as new counsel.
Id., 244–45. The Supreme Court further concluded that, assuming the peti-
tioner had made a clear and unequivocal request to represent himself at
the sentencing hearing, Judge Schimelman did not abuse his discretion in
denying the request. Id., 249–50.
5
The habeas court also found that the petitioner failed to establish that
any deficient performance on the part of his trial counsel prejudiced him.
Because we agree with the habeas court that the petitioner’s trial counsel
did not perform deficiently, we need not reach the issue of prejudice. See
Ouellette v. Commissioner of Correction, 154 Conn. App. 433, 448 n.9, 107
A.3d 480 (2014) (‘‘[a] court evaluating an ineffective assistance claim need
not address both components of the Strickland test if the [claimant] makes
an insufficient showing on one’’ [internal quotation marks omitted]).
6
We note that the merits of the trial court’s response to Sullivan’s represen-
tation were addressed in State v. Pires, supra, 310 Conn. 246–49, and we
need not discuss the merits further here.