Robert S. v. Commissioner of Correction ( 2019 )

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ROBERT S. v. COMMISSIONER OF CORRECTION*
(AC 41895)
Keller, Bright and Bear, Js.
Syllabus
The petitioner sought a writ of habeas corpus, claiming, inter alia, that his
trial counsel had provided ineffective assistance by failing to investigate
the viability of an intoxication defense. The petitioner had pleaded guilty,
under the Alford doctrine, to various charges in connection with the
stabbing deaths of two children. The plea agreement allowed the peti-
tioner to avoid the death penalty, and he received a total effective
sentence of life in prison with no possibility of release. The habeas
court rendered judgment denying the habeas petition and, thereafter,
denied the petition for certification to appeal, and the petitioner appealed
to this court. Held that the habeas court did not abuse its discretion
in denying the petition for certification to appeal, the record having
supported that court’s conclusion that trial counsel’s strategy in not
presenting an intoxication defense did not constitute ineffective assis-
tance: the habeas court properly determined that the petitioner failed
to satisfy his burden of overcoming the presumption that trial counsel’s
decision not to raise an intoxication defense was a reasonable trial
strategy, the petitioner’s claim that had trial counsel properly investi-
gated and informed him of a possible intoxication defense, there was
a reasonable probability that he would not have pleaded guilty was
unavailing, as trial counsel adequately investigated and informed the
petitioner of the availability and effectiveness of an intoxication defense,
and properly advised him that an intoxication defense would likely have
failed and that if he had gone to trial he would have faced a possible
death sentence, and although the petitioner claimed that he was under
the influence of drugs at the time of the murders in support of his
intoxication claim, no evidence of the drug he purportedly ingested was
recovered, the petitioner denied being under the influence of drugs
to the police immediately following the murders, and the results of
psychological tests obtained by the petitioner’s trial counsel suggested
that any ingestion of drugs immediately prior to the murders may have
been voluntary and did not support a potential defense of intoxication;
accordingly, the petitioner failed to establish that the issues he raised
were debatable among jurists of reason, that a court reasonably could
have resolved them differently, or that they raised questions deserving
further appellate scrutiny.
Argued September 11—officially released November 19, 2019
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.
James E. Mortimer, assigned counsel, for the appel-
lant (petitioner).
Lawrence J. Tytla, supervisory assistant state’s attor-
ney, for the appellee (respondent).
Opinion
BEAR, J. The petitioner, Robert S., appeals following
the denial of his amended 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) abused its
discretion in denying his petition for certification to
appeal and (2) improperly concluded that he failed to
establish that he had received ineffective assistance
from his trial counsel because they failed to conduct a
proper investigation and to advise him of the viability
of an intoxication defense. We conclude that the habeas
court did not abuse its discretion in denying the petition
for certification to appeal and, accordingly, dismiss the
petitioner’s appeal.
The habeas court’s memorandum of decision sets
forth the following relevant facts and procedural his-
tory: ‘‘In the early hours of April 20, 2004, in New Lon-
don, the petitioner visited the apartment of his former
girlfriend [F, who was also the mother of his son]. While
there, he stabbed [F] multiple times as well as stabbing
a neighbor . . . . While [F] sought refuge in [the neigh-
bor’s] apartment, the petitioner barricaded himself, his
fifteen month old son . . . and [F’s] ten year old sister
. . . in [F’s] apartment.
‘‘When the police arrived and pleaded with the peti-
tioner to permit them to enter the apartment, the peti-
tioner falsely warned them that he had a gun and would
commence shooting if anyone tried to enter. The police
could hear [F’s sister] screaming for help but could not
break down the metal door to the apartment.
‘‘Eventually, the petitioner unlocked the door, and
the police discovered that the petitioner stabbed to
death [both children]. The petitioner stabbed [F’s sister]
eleven times frontally and ten times in her back. She
had six wounds to her neck. The petitioner stabbed
[his son approximately] fourteen times, the blows dis-
tributed to the toddler’s neck, scalp, chest, and abdo-
men. . . .
‘‘[T]he petitioner faced capital felony charges which
allowed for imposition of the death penalty or life
imprisonment without possibility of parole upon con-
viction. Murder of two persons in the course of a single
transaction was a capital felony in 2004. See General
Statutes § 53a-54b (7). The petitioner previously with-
drew claims involving retroactive application of State
v. Santiago, 318 Conn. 1, [122 A.3d 1] (2015).1
‘‘A bifurcation of the criminal trial into proceedings
determining guilt and those pertaining to penalty was
required in death penalty cases. See General Statutes
§ 53a-46a. Upon conviction of a capital offense, the fact
finder then received evidence and argument concerning
the existence or nonexistence of aggravating and miti-
penalty was appropriate. If not, then the accused
received a life sentence without possibility of parole.
‘‘After extensive investigation . . . [the petitioner’s
trial counsel], Attorneys [Bruce] Sturman and [Fred]
DeCaprio,2 were able to negotiate a plea disposition to
the charges [against the petitioner] in exchange for the
state’s abandonment of its quest for the death penalty.
On May 11, 2007, the petitioner pleaded guilty pursuant
to that agreement [under the Alford3 doctrine].’’ (Foot-
notes added.)
On January 22, 2014, the petitioner, then a self-repre-
sented litigant, filed a petition for a writ of habeas
corpus. The petitioner subsequently requested and was
appointed habeas counsel. On May 18, 2016, the peti-
tioner amended his petition for a writ of habeas corpus,
which was predicated on the alleged ineffective assis-
tance of trial counsel. Specifically, the petitioner alleged
that ‘‘[trial counsel] erroneously advised him that he had
no viable defenses or evidence to mitigate the charges
against him arising from intoxication; that [trial coun-
sel] failed to investigate and research the law properly
concerning intoxication as a defense or mitigant; that
[trial counsel] afforded him insufficient time to consider
the proposed plea disposition; that [trial counsel] misin-
formed him that a sentence to life imprisonment with-
out possibility of parole was equivalent to a sixty year
sentence; and misinformed him that he would become
eligible for parole at such time.’’ At the habeas trial on
May 24, 2018, the habeas court heard testimony from
the petitioner and his trial counsel.
The habeas court, Sferrazza, J., in its May 31, 2018
memorandum of decision, denied the petitioner’s
amended petition for a writ of habeas corpus. On June
8, 2018, the petitioner filed a petition for certification
to appeal, which the habeas court denied. This appeal
followed. Additional facts will be set forth where nec-
essary.
The petitioner claims that the habeas court abused
its discretion in denying his petition for certification to
appeal. We disagree.
‘‘We begin by setting forth the applicable standard
of review and procedural hurdles that the petitioner
must surmount to obtain appellate review of the merits
of a habeas court’s denial of the habeas petition follow-
ing denial of certification to appeal. In Simms v. War-
den, 229 Conn. 178, 187, 640 A.2d 601 (1994), [our
Supreme Court] concluded that . . . § 52-470 (b) pre-
vents a reviewing court from hearing the merits of a
habeas appeal following the denial of certification to
appeal unless the petitioner establishes that the denial
of certification constituted an abuse of discretion by
the habeas court. In Simms v. Warden, 230 Conn. 608,
615–16, 646 A.2d 126 (1994), [our Supreme Court] incor-
porated the factors adopted by the United States
Supreme Court in Lozada v. Deeds, 498 U.S. 430, 431–32,
111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), as the appro-
priate standard for determining whether the habeas
court abused its discretion in denying certification to
appeal. This standard requires the petitioner to demon-
strate that the [resolution of the underlying claim
involves] issues [that] are debatable among jurists of
reason; that a court could resolve the issues [in a differ-
ent manner]; or that the questions are adequate to
deserve encouragement to proceed further. . . . A
petitioner who establishes an abuse of discretion
through one of the factors listed above must then dem-
onstrate that the judgment of the habeas court should
be reversed on its merits. . . . 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 reason-
ably determined that the petitioner’s appeal was frivo-
lous.’’ (Emphasis omitted; internal quotation marks
omitted.) Blake v. Commissioner of Correction, 150
Conn. App. 692, 695, 91 A.3d 535, cert. denied, 312 Conn.
923, 94 A.3d 1202 (2014). ‘‘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 [our Supreme
Court] for determining the propriety of the habeas
court’s denial of the petition for certification.’’ (Internal
quotation marks omitted.) Johnson v. Commissioner
of Correction, 181 Conn. App. 572, 578, 187 A.3d 543,
cert. denied, 329 Conn. 909, 186 A.3d 13 (2018). Further-
more, ‘‘this court cannot disturb the underlying facts
found by the habeas court unless they are clearly erro-
neous, but our review of whether the facts as found by
the habeas court constituted a violation of the petition-
er’s constitutional right to effective assistance of coun-
sel is plenary.’’ (Internal quotation marks omitted.)
Ricardo R. v. Commissioner of Correction, 185 Conn.
App. 787, 797, 198 A.3d 630 (2018), cert. denied, 330
Conn. 959, 199 A.3d 560 (2019).
In determining whether there has been an abuse of
discretion, every reasonable presumption should be
given by this court in favor of the correctness of the
habeas court’s ruling, and reversal is required only
where an abuse of discretion is manifest or where injus-
tice appears to have been done. See Peeler v. Commis-
sioner of Correction, 161 Conn. App. 434, 443, 127 A.3d
1096 (2015). Having set forth the appropriate standard
of review, we next consider the petitioner’s claims.
The petitioner claims that the habeas court improp-
erly concluded that he received effective assistance of
counsel. Specifically, the petitioner argues that trial
counsel provided ineffective assistance both by failing
to raise the defense of intoxication to mitigate the
charges of capital murder and by failing to advise him
about the viability of such a defense. We are not per-
suaded.
The following principles guide our review of a claim
of ineffective assistance of counsel. After a guilty plea
has been entered by a defendant and accepted by the
court, ‘‘[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 v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] and
[Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L.
Ed. 2d 203 (1985)]. . . . In Strickland, which applies
to claims of ineffective assistance during criminal pro-
ceedings generally, the United States Supreme Court
determined that the claim must be supported by evi-
dence 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 reasonable probability that the out-
come of the proceedings would have been different had
it not been for the deficient performance. . . .
‘‘To satisfy the performance prong under Strickland-
Hill, the petitioner must show that counsel’s represen-
tation fell below an objective standard of reasonable-
ness. . . . A petitioner who accepts counsel’s advice
to plead guilty has the burden of demonstrating on
habeas appeal that the advice was not within the range
of competence demanded of attorneys in criminal
cases. . . . The range of competence demanded is rea-
sonably competent, or within the range of competence
displayed by lawyers with ordinary training and skill
in the criminal law. . . . Reasonably competent attor-
neys may advise their clients to plead guilty even if
defenses may exist.’’ Clinton S. v. Commissioner of
Correction, 174 Conn. App. 821, 827–28, 167 A.3d 389,
cert. denied, 327 Conn. 927, 171 A.3d 59 (2017).
‘‘It is axiomatic that decisions of trial strategy and
tactics rest with the attorney. . . . Furthermore, our
review of counsel’s performance is highly deferential.
. . . Indeed, [a] fair assessment of attorney perfor-
mance 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 defen-
dant must overcome the presumption that, under the
circumstances, the challenged action might be consid-
ered sound trial strategy. . . . Our cases instruct that
[s]trategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually
unchallengeable . . . .’’ (Citations omitted; internal
quotation marks omitted.) Meletrich v. Commissioner
of Correction, 332 Conn. 615, 627–28, 212 A.3d 678
(2019). ‘‘[Counsel’s] decision not to call attention to the
petitioner’s intoxication falls into the category of trial
strategy or judgment calls that we consistently have
declined to second guess.’’ (Internal quotation marks
omitted.) Ramey v. Commissioner of Correction, 150
Conn. App. 205, 214, 90 A.3d 344, cert. denied, 314 Conn.
902, 99 A.3d 1168 (2014).
The petitioner argues that trial counsel’s performance
was deficient for failing to conduct an adequate investi-
gation of the viability of an intoxication defense. Specifi-
cally, the petitioner argues that had trial counsel prop-
erly investigated and informed him of the availability
of an intoxication defense, there is a reasonable proba-
bility that he would not have pleaded guilty.
We conclude that the record supports the habeas
court’s finding that the petitioner’s trial counsel ade-
quately investigated and informed the petitioner of the
availability and effectiveness of an intoxication defense.
The habeas court found that within a few weeks
following the petitioner’s arrest and meeting with trial
counsel, the petitioner communicated to them that he
had smoked a blunt4 in F’s apartment prior to the mur-
ders. He claims that the blunt he smoked contained
phencyclidine, commonly referred to as PCP, which
resulted in his abhorrent behavior. One of his arguments
regarding his ineffective assistance of counsel claim is
that trial counsel failed to act on his representation to
them that the blunt he smoked in F’s apartment con-
tained PCP. The habeas court found that trial counsel
investigated this claim by examining reports and photo-
graphs from the scene of the crime compiled by mem-
bers of the Connecticut State Police Major Crime Squad,
after they searched and processed F’s apartment. Dur-
ing the crime squad’s examination of the crime scene,
no blunt was recovered. Shortly after the petitioner had
committed the murders, he was admitted to Lawrence +
Memorial Hospital for treatment. While there, Sergeant
Brian Wright of the New London Police Department
asked the petitioner if he was under the influence of
any drugs at the time of the murders. The petitioner
denied being under the influence of any drugs during
the relevant time period.
The petitioner also claims that trial counsel per-
formed deficiently because they failed to have his blood
and urine tested specifically for PCP. During the habeas
proceeding, the court concluded that while the peti-
tioner was at the hospital, samples of his blood and
urine were collected by hospital staff pursuant to a
search warrant. The habeas court further concluded
that no evidence was adduced ‘‘that the material tested
negative for PCP or other substances; that such a test
was performed; or that such a test for PCP [was]
even available.’’
Evidence presented at the habeas trial demonstrated
that trial counsel had the petitioner evaluated by three
mental health professionals who opined that the peti-
tioner exhibited psychotic symptoms caused by fre-
quent ingestion of drugs including, but not limited to,
marijuana and PCP. The habeas court found that the
results of the psychological tests did not support the
potential defense of intoxication. Rather, the results
suggest that if the petitioner ingested PCP before com-
mitting the murders, the ingestion may have been vol-
untary.
Furthermore, the habeas court found that in light of
the overwhelming evidence supporting trial counsel’s
decision not to raise the defense of intoxication,
‘‘[d]efense counsel correctly informed the petitioner
that under General Statutes § 53a-7,5 intoxication only
provided a defense to criminal conduct if that intoxica-
tion ‘negate[d] an element of the crime.’ Murder does
require proof of the specific intent to kill. However,
the acts incontrovertibly committed by the petitioner
displayed specific intent to kill the children, despite the
effects of intoxication. He stabbed each child several
times including multiple mortal strikes to their throat
and torso. He deterred the police from rescuing the
children by claiming to have a firearm. This occurred
while [F’s sister] screamed for help. A reasonable infer-
ence would be that the petitioner employed that ruse
in order to prevent the police from thwarting his mission
to kill them.’’ (Footnote added.) Additionally, the peti-
tioner brought a bag containing knives to F’s apartment
on the night of the murders with no explanation as to
why he had done so. The habeas court determined that
this evidence demonstrated that the petitioner had
acted with premeditation in committing the murders,
and his intent undermined the viability of an intoxica-
tion defense at trial.
In its memorandum of decision, the habeas court
concluded that, after considering the evidence in its
totality in light of the capital charges, trial counsel, in
their reasonable, professional judgment, properly
advised the petitioner that an intoxication defense likely
would have failed and that if he went to trial he would
have faced a possible death sentence. Considering that
trial evidence, the habeas court’s conclusion was not
an abuse of its discretion. ‘‘Indeed, we recognize that
[t]here are countless ways to provide effective assis-
tance in any given case. Even the best criminal defense
attorneys would not defend a particular client in the
same way. . . . [A] reviewing court is required not sim-
ply to give [the trial attorney] the benefit of the doubt
. . . but to affirmatively entertain the range of possible
reasons . . . counsel may have had for proceeding as
[they] did . . . .’’ (Internal quotation marks omitted.)
Meletrich v. Commissioner of Correction, supra, 332
Conn. 637.
On the basis of the foregoing, we conclude that the
petitioner has not proven that the habeas court abused
its discretion when it denied his petition for certification
after concluding that trial counsel adequately investi-
gated the viability of an intoxication defense, that the
petitioner failed to satisfy his burden of overcoming
the presumption that trial counsel’s decision not to
raise the defense of intoxication was a reasonable trial
strategy, and that trial counsel’s strategy did not consti-
tute deficient performance.6 We agree with the habeas
court that the petitioner failed to establish that the
issues he raises are debatable among jurists of reason,
that they reasonably could be resolved by a court differ-
ently, or that they raise questions deserving further
appellate scrutiny. See McClain v. Commissioner of
Correction, 188 Conn. App. 70, 92, 204 A.3d 82, cert.
denied, 331 Conn. 914, 204 A.3d 702 (2019). Thus, 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.
* In accordance with our policy of protecting the privacy interests of the
victims of family violence, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
1
At the habeas trial, the petitioner abandoned the first claim in his
amended petition, and pursued the remaining claims: two, three, and four. In
this appeal, the petitioner pursues only claims two and three. The petitioner’s
claims were as follows: ‘‘Claim One: State v. Santiago: The petitioner pleaded
guilty to the charges prior to [our] Supreme Court’s ruling in State v. Santi-
ago. Therefore, the petitioner pleaded guilty to the charges not knowing
that he would not be subjected to the death penalty if he lost at trial. Had
the petitioner known that the death penalty would be repealed and that this
repeal would be made retroactive, he would not have pleaded guilty and
would have taken his case to trial. . . .
‘‘Claim Two: Ineffective assistance of trial counsel: Counsel misled the
petitioner regarding his possible trial strategies and defenses, which effec-
tively confused him and coerced him to plead guilty. Counsel’s actions
constitute ineffective assistance of counsel. Had the petitioner fully under-
stood the state’s offer and had the time to consider it in light of his possible
trial strategies and defenses, he would have rejected the plea and taken his
case to trial. . . .
‘‘Claim Three: Ineffective assistance of trial counsel: Counsel’s failure
to investigate the petitioner’s involuntary intoxication claim caused the
petitioner to misunderstand the strength of his case which coerced him to
plead guilty. Counsel’s actions constitute ineffective assistance of counsel.
Had counsel performed proper investigation, the petitioner would have
rejected the plea and taken his case to trial. . . .
‘‘Claim Four: Ineffective assistance of trial counsel: Counsel’s failure to
discuss the plea offer with the petitioner or disclose its terms caused the
petitioner to plead guilty to an unknown plea. Counsel’s actions constitute
ineffective assistance of counsel. Had counsel discussed the offer with the
petitioner and disclosed its full terms, the petitioner would have rejected
the plea and taken his case to trial.’’
2
The habeas court found in its memorandum of decision that ‘‘[b]oth
Attorney DeCaprio and Attorney Sturman were highly experienced criminal
defense lawyers who had represented many clients charged with murder,
including defendants facing capital offenses, before they represented the
petitioner. Attorney Sturman was the public defender for the New London
Judicial District, and Attorney DeCaprio was and had been a member of
the chief public defender’s capital murder unit for several years preceding
the petitioner’s case.’’ Hereafter, any reference to ‘‘trial counsel’’ refers to
Attorneys DeCaprio and Sturman.
3
See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970). ‘‘A defendant who pleads guilty under the Alford doctrine does
not admit guilt but acknowledges that the state’s evidence against him is
so strong that he is prepared to accept the entry of a guilty plea.’’ Parker
v. Commissioner of Correction, 169 Conn. App. 300, 303 n.3, 149 A.3d 174,
cert. denied, 324 Conn. 903, 151 A.3d 1289 (2016).
4
A ‘‘blunt’’ is a street term used to describe a cigar that has been hollowed
out, filled with marijuana, and smoked to ingest the drug. See State v.
Sanchez, 75 Conn. App. 223, 226 n.1, 815 A.2d 242, cert. denied, 263 Conn.
914, 821 A.2d 769 (2003).
5
General Statutes § 53a-7 provides: ‘‘Intoxication shall not be a defense
to a criminal charge, but in any prosecution for an offense evidence of
intoxication of the defendant may be offered by the defendant whenever
it is relevant to negate an element of the crime charged, provided when
recklessness or criminal negligence is an element of the crime charged, if
the actor, due to self-induced intoxication, is unaware of or disregards or
fails to perceive a risk which he would have been aware of had he not been
intoxicated, such unawareness, disregard or failure to perceive shall be
immaterial. As used in this section, ‘intoxication’ means a substantial distur-
bance of mental or physical capacities resulting from the introduction of
substances into the body.’’
6
To satisfy the second part of the Strickland-Hill test, the prejudice prong,
‘‘the petitioner must show a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted on going
to trial.’’ (Internal quotation marks omitted.) Clinton S. v. Commissioner
of Correction, supra, 174 Conn. App. 828; see also Humble v. Commissioner
of Correction, 180 Conn. App. 697, 705, 184 A.3d 804 (2018). In light of our
conclusion that trial counsel did not perform deficiently, we do not need
to consider the prejudice prong of the Strickland-Hill test. See Michael T.
v. Commissioner of Correction, 319 Conn. 623, 639, 126 A.3d 558 (2015)
(our Supreme Court found that it ‘‘need not consider . . . or address the
prejudice prong of the Strickland test’’ if petitioner fails to establish counsel
provided ineffective assistance).