Lenti v. Commissioner of Correction ( 2020 )

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JOHN LENTI v. COMMISSIONER OF CORRECTION
(AC 41647)
DiPentima, C. J., and Lavine and Eveleigh, Js.
Syllabus
The petitioner, who previously had pleaded guilty to burglary in the first
degree and had admitted to five violations of probation as part of a
plea agreement, filed an amended petition for a writ of habeas corpus,
claiming, inter alia, that his guilty plea was not knowingly, intelligently
and voluntarily given because the petitioner was under the influence
of several heavy narcotics administered by Department of Correction
personnel, rendering him unable to understand the plea agreement, and
that his trial counsel was ineffective for failing to determine that the
petitioner was so heavily medicated that he was unable to understand
and voluntarily enter a guilty plea. The habeas court rendered judgment
denying the habeas petition and, thereafter, denied the petition for certifi-
cation to appeal, and the petitioner appealed to this court. Held:
1. This court declined to review the petitioner’s claim that the habeas court
erred in determining that his guilty plea was made knowingly, intelli-
gently and voluntarily because the petitioner failed to address the thresh-
old issue of whether the habeas court abused its discretion in denying
his petition for certification to appeal on this issue and addressed only
the habeas court’s purported error in concluding that his due process
rights had not been violated; generally, a petitioner is not afforded
appellate review of the habeas court’s decision if he has failed to estab-
lish that the habeas court abused its discretion in denying the petition
for certification.
2. The habeas court did not abuse its discretion in denying the petition for
certification to appeal regarding the petitioner’s ineffective assistance
of counsel claim: although the habeas court did not make an explicit
finding regarding the petitioner’s claim of ineffective assistance of coun-
sel, in light of the findings supported by the record, including findings
that the petitioner was not impaired by the prescribed medications to
the extent that he could not understand the proceedings or the terms
of the plea agreement, that his decision to accept that offer was made
cogently and voluntarily, that the petitioner responded appropriately to
the trial court’s questions during the plea canvass, and its determination
that the petitioner’s testimony was not credible, the habeas court did not
err in concluding that the petitioner was not impaired by his prescribed
medications to the extent that he could not understand the plea agree-
ment and the plea proceedings; accordingly, the petitioner’s ineffective
assistance of counsel claim must fail.
Argued October 24, 2019—officially released February 4, 2020
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Sferrazza, J.; judgment
denying the petition; thereafter, the court denied the
petition for certification to appeal, and the petitioner
appealed to this court. Appeal dismissed.
Douglas H. Butler, assigned counsel, for the appel-
lant (petitioner).
Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Tamara Grosso, senior assistant state’s
attorney, for the appellee (respondent).
Opinion
DiPENTIMA, C. J. The petitioner, John Lenti, appeals
following the denial of his petition for certification to
appeal from the judgment of the habeas court denying
his petition for a writ of habeas corpus. On appeal, the
petitioner claims that the habeas court (1) improperly
concluded that he had failed to establish that his plea
was not made knowingly, intelligently, and voluntarily,
and (2) abused its discretion in denying his petition for
certification to appeal from the court’s determination
that he had received the effective assistance of counsel.
Both of these claims rest on the petitioner’s assertion
that he was impaired at the time of his plea by the
ingestion of medications prescribed by Department of
Correction personnel. We disagree with this assertion
and the petitioner’s claims and, accordingly, dismiss
the appeal.
The habeas court’s memorandum of decision sets
forth the following relevant facts and procedural his-
tory: ‘‘On August 12, 2013, the petitioner was on proba-
tion for five burglary offenses for which he had received
a total, effective sentence of twenty years imprison-
ment, execution suspended after the service of two
years, and five years of probation. On that day, the
police arrested the petitioner for having unlawfully
entered an elderly woman’s home by damaging a garage
door; displayed a handgun upon encountering the
woman; and demanded that she give him money and
her car keys or he would shoot her. The woman refused
to comply, and the petitioner stole her cordless phone,
as he fled the scene on foot.
‘‘When the police apprehended him a short while
later, the police retrieved a pellet gun nearby. The peti-
tioner confessed to breaking into the victim’s home
while armed with the pellet gun. The petitioner faced
charges of home invasion, attempted robbery first
degree, and numerous misdemeanors.’’ As a result of
this arrest, the petitioner also was charged with five
counts of violation of probation in relation to the five
prior burglary convictions for which he was then on
probation. The petitioner owed a total of eighteen years
for those convictions.
In exchange for pleading guilty to burglary in the first
degree and admitting to five violations of probation,
the state offered to recommend to the court a sentence
of between ten and eighteen years of imprisonment.
On March 27, 2014, the petitioner pleaded guilty in
accordance with the state’s offer. The petitioner
responded appropriately to the court’s canvass. Prior
to sentencing, trial counsel asked Kenneth Selig, a board
certified forensic psychologist, to analyze and assess
the petitioner’s mental status. On June 19, 2014, the
court sentenced the petitioner to sixteen years of
imprisonment followed by two years of special parole.
The petitioner did not file a direct appeal.
On December 24, 2014, the petitioner commenced
the present habeas action. On May 30, 2017, the peti-
tioner filed an amended petition seeking to have his
guilty pleas vacated. In his amended petition, the peti-
tioner alleged that: (1) his guilty plea was not knowingly,
intelligently, or voluntarily given because the petitioner
was under the influence of heavy narcotics adminis-
tered by Department of Correction personnel, rendering
him unable to understand the plea agreement, and (2)
his trial counsel was ineffective for failing to determine
that the petitioner was so heavily medicated that he
was unable to knowingly and voluntarily enter a plea.
The respondent, the Commissioner of Correction, filed
a return, alleging that the petitioner’s due process claim
was procedurally defaulted.1 The habeas court con-
ducted a trial on November 21, 2017, during which the
petitioner, trial counsel and Robert H. Powers, a foren-
sic toxicologist, testified. No witnesses were called by
the respondent.
On April 13, 2018, the habeas court issued a memoran-
dum of decision denying the petition for a writ of habeas
corpus. The habeas court found that the petitioner
failed to prove that his prescribed medications dimin-
ished his ability to understand the plea agreement or
the proceedings. Further, the court found that, at the
time he pleaded guilty, the petitioner understood the
terms of the agreement and that his decision to plead
was knowing and voluntary.
Thereafter, the petitioner filed a petition for certifica-
tion to appeal, which the habeas court denied. The
petitioner subsequently appealed, claiming that the
habeas court had abused its discretion in denying his
request for certification to appeal, solely with respect
to the ineffective assistance of counsel claim.
We begin by setting forth the applicable standard of
review. ‘‘Faced with a habeas court’s denial of a petition
for certification to appeal, a petitioner can obtain appel-
late review of the dismissal of his petition for habeas
corpus only by satisfying the two-pronged test enunci-
ated 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 deci-
sion of the habeas court should be reversed on the
merits.’’ (Internal quotation marks omitted.) Sanders v.
Commissioner of Correction, 169 Conn. App. 813, 821,
153 A.3d 8 (2016), cert. denied, 325 Conn. 904, 156 A.3d
536 (2017). As to the first prong, the ‘‘standard requires
the petitioner to demonstrate that the issues are debat-
able 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 fur-
ther. . . . In determining whether the habeas court
abused its discretion in denying the petitioner’s request
for certification, we necessarily must consider the mer-
its of the petitioner’s underlying claims to determine
whether the habeas court reasonably determined that
the petitioner’s appeal was frivolous.’’ (Emphasis omit-
ted; internal quotation marks omitted.) Grover v. Com-
missioner of Correction, 183 Conn. App. 804, 812, 194
A.3d 316, cert. denied, 330 Conn. 933, 194 A.3d 1196
(2018).
On appeal, the petitioner claims that the habeas court
erred in determining that his guilty plea was made
knowingly, intelligently, and voluntarily.2 The petitioner
fails to address the threshold issue of whether the
habeas court abused its discretion in denying the peti-
tion for certification to appeal on this issue but only
addresses the habeas court’s purported error in con-
cluding that his due process rights had not been vio-
lated. See Sanders v. Commissioner of Correction,
supra, 169 Conn. App. 821. Generally, a petitioner is
not afforded appellate review of the habeas court’s deci-
sion if he has failed to establish that the habeas court
abused its discretion in denying the petition for certifi-
cation. See Reddick v. Commissioner of Correction, 51
Conn. App. 474, 477, 722 A.2d 286 (1999).
‘‘In Petaway v. Commissioner of Correction, 49
Conn. App. 75, 77–78, 712 A.2d 992 (1998), and, subse-
quently, in Reddick v. Commissioner of Correction,
supra, 51 Conn. App. 477, this court refused to review
the petitioners’ ineffective assistance of counsel claims.
In each of those cases, the petitioner raised the claim
of ineffective assistance of counsel but failed to brief
the threshold issue . . . of how the court had abused
its discretion in failing to grant certification to appeal
as to that underlying claim.’’ Mitchell v. Commissioner
of Correction, 68 Conn. App. 1, 7–8, 790 A.2d 463, cert.
denied, 260 Conn. 903, 793 A.2d 1089 (2002). Accord-
ingly, we do not review the petitioner’s first claim.
In addressing the petitioner’s claim of ineffective
assistance, we first note that it is well established that
‘‘[t]he habeas court is afforded broad discretion in mak-
ing its factual findings, and those findings will not be
disturbed [on appeal] unless they are clearly erroneous.
. . . Thus, [t]his court does not retry the case or evalu-
ate the credibility of the witnesses. . . . Rather, we
must defer to the [trier of fact’s] assessment of the
credibility of the witnesses based on its firsthand obser-
vation of their conduct, demeanor and attitude. . . .
The 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.’’ (Internal quotation marks
omitted.) Orcutt v. Commissioner of Correction, 284
Conn. 724, 741, 937 A.2d 656 (2007).
The habeas court found that ‘‘the petitioner has failed
to prove, by a preponderance of the evidence, that the
prescribed drugs used by the petitioner in the days
preceding his decision to plea[d] guilty, during the tak-
ing of his pleas, and between plea and sentencing
impaired his ability to comprehend the information and
advice given to him by defense counsel, the plea canvass
conducted by the trial judge, or the interviews con-
ducted between plea and sentencing.’’ The court further
found that ‘‘the petitioner understood the legal situation
in which he was enmeshed, the terms of the plea agree-
ment, and that his decision to accept that offer was
made cogently and voluntarily.’’
During his habeas trial, the petitioner testified that
he did not remember being sentenced and would never
have pleaded guilty had it not been for his overmedi-
cated state. The habeas court found the petitioner’s
testimony not to be credible, specifically stating that
his testimony was ‘‘inaccurate, self-serving, and contra-
dicted by other, more credible evidence.’’ As stated
previously, we do not disturb the court’s credibility
determination on appeal. See Orcutt v. Commissioner
of Correction, supra, 284 Conn. 741.
The habeas court noted that, although trial counsel
testified that the petitioner complained that the medica-
tion he was taking had ‘‘unpleasant side effects’’ and
that he wanted to discontinue that course of treatment,
trial counsel also stated that the medication seemed
to have no ‘‘detrimental influence on the petitioner’s
comprehension or judgment.’’ Further, between plea
and sentencing, Selig examined the petitioner over mul-
tiple sessions and produced a report3 for the sentencing
court that did not contain any complaints from the
petitioner about his ability to make a knowing decision
to plead guilty due to the medications. In his report,
as the habeas court notes, Selig determined that the
‘‘combination of [medications] has been very helpful
for [the petitioner] as has abstaining from addictive
drugs.’’ (Internal quotation marks omitted.) The habeas
court also found that the petitioner responded appropri-
ately to all of the court’s questions during the plea
canvass, including direct questions about whether the
petitioner had taken any medications that affected his
ability to understand the court.4 Thus, the habeas court’s
finding that the petitioner was not negatively affected
by his medications is not clearly erroneous.
Although the habeas court did not make an explicit
finding regarding his claim of ineffective assistance of
counsel, it did find that the petitioner was not impaired
by the prescribed medications to the extent that he
could not understand the proceedings or that ‘‘his ability
to comprehend the information and advice given to
him by defense counsel’’ was impaired at the time he
pleaded guilty. In light of the findings supported by the
record, and the habeas court’s credibility determina-
tions, we do not disturb its implicit finding that trial
counsel was not ineffective for failing to determine that
the petitioner was impaired. Because the habeas court
did not err in concluding that the petitioner was not
impaired by his prescribed medications to the extent
that he could not understand the plea agreement and the
plea proceedings, the ineffective assistance of counsel
claim must fail. Therefore, we conclude that the habeas
court did not abuse its discretion in denying the petition
for certification to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The habeas court did not rule on the respondent’s defense of proce-
dural default.
2
On appeal, the petitioner also claims that the habeas court erred in
finding that he had failed to establish that his due process rights were
violated when he involuntarily pleaded guilty because he was incompetent
at the time he pleaded due to his ‘‘pervasive, persistent and debilitating’’
mental health issues. We do not consider this claim as it was not raised in
the petitioner’s operative petition for a writ of habeas corpus. See Greene
v. Commissioner of Correction, 131 Conn. App. 820, 822, 29 A.3d 171 (2011)
(‘‘[h]aving not raised this issue before the habeas court, the petitioner is
barred from raising it on appeal’’), cert. denied, 303 Conn. 936, 36 A.3d
695 (2012).
3
The petitioner’s presentence investigation report and Selig’s report were
admitted into evidence under seal at the habeas trial.
4
During the sentencing, the petitioner spoke on his own behalf and stated
to the court, ‘‘I’m on the right medication now; I’ve been doing great.’’