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Hickey v. Comm'r of Corr.

Appellate Court of Connecticut

January 26, 2016

DENIS HICKEY
v.
COMMISSIONER OF CORRECTION

         Argued October 14, 2015

          Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland and tried to the court, Mullins, J.; judgment granting the petition, from which the respondent, on the granting of certification, appealed to this court.

          Reversed; further proceedings.

          SYLLABUS

         The petitioner, who had been convicted of certain crimes in connection with the sexual abuse of the child victim, sought a writ of habeas corpus, claiming that his trial and appellate counsel provided ineffective assistance. Specifically, he claimed that his trial counsel was deficient in failing to ask the trial court to give a cautionary instruction to the jury at the time it admitted into evidence certain testimony from another child, R, concerning the petitioner's alleged prior, uncharged sexual misconduct, as required by State v. DeJesus (288 Conn. 418, 953 A.2d 45). The petitioner further claimed that his appellate counsel was deficient in failing to raise the unpreserved instructional error on appeal. The habeas court granted the habeas petition, concluding that both trial and appellate counsel rendered ineffective assistance and that the petitioner was prejudiced thereby. On the granting of certification, the respondent, the Commissioner of Correction, appealed to this court. Held :

         1. The habeas court improperly concluded that the petitioner suffered prejudice due to the allegedly deficient performance of his trial counsel: in reaching its conclusion that the petitioner suffered prejudice, the habeas court neglected to substantiate its conclusions with a factual analysis of how the trial court's failure to give a cautionary instruction at the time of the admission of R's testimony concerning the petitioner's alleged prior, uncharged sexual misconduct, misled the jury, or resulted in an unfair trial or reasonable doubt as to the petitioner's guilt, the habeas court did not assess the risk of undue prejudice posed by R's testimony, particularly in light of medical testimony that substantiated the victim's sexual abuse, but merely assumed that R's testimony likely prejudiced the petitioner, and the habeas court failed to analyze trial counsel's deficient performance in the context of the entire trial, including the evidence and arguments of counsel; accordingly, a new trial concerning the claim of ineffective assistance of trial counsel was warranted.

         2. The habeas court improperly concluded that the allegedly deficient performance of appellate counsel prejudiced the petitioner: with respect to the habeas court's conclusion that appellate counsel was ineffective because he had no strategic reason for not raising the timing or content of the jury charge, the habeas court's memorandum of decision did not include an analysis of prejudice the petitioner sustained and did not explain why there was a reasonable probability that the petitioner would have prevailed in his direct appeal if appellate counsel had raised a claim related to the trial court's failure to give a cautionary instruction pursuant to DeJesus ; nevertheless, because the claimed error in the jury instruction was not preserved at trial and was not of constitutional magnitude, it could not have been reviewed on direct appeal pursuant to State v. Golding (213 Conn. 233, 567 A.2d 823), or the plain error doctrine, and, therefore, appellate counsel's failure to raise the claim could not have resulted in prejudice to the petitioner.

         Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, were David S. Shepack, state's attorney, and Erika L. Brookman, assistant state's attorney, for the appellant (respondent).

         Alan Jay Black, for the appellee (petitioner).

         Lavine, Alvord and Mihalakos, Js. LAVINE, J. In this opinion the other justices concurred.

          OPINION

          [162 Conn.App. 506] LAVINE, J.

          The respondent, the Commissioner of Correction, appeals after the habeas court granted his petition for certification to appeal from the court's judgment granting the amended petition for a writ of habeas corpus filed by the petitioner, Denis Hickey. On appeal the respondent claims, in part, that the habeas court improperly determined that the petitioner was prejudiced by the legal representation provided him by trial and appellate counsel. We agree and, therefore, reverse the judgment of the habeas court.

         The following procedural history underlies the present appeal. In June, 2009, the petitioner was convicted of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). See State v. Hickey, 135 Conn.App. 532, 534, [162 Conn.App. 507] 43 A.3d 701, cert. denied, 306 Conn. 901, 52 A.3d 728 (2012). At trial, the jury reasonably could have found that the petitioner digitally penetrated the anus of his then girlfriend's five year old daughter (victim) while she and her family were living with the petitioner.[1] Id., 535. The petitioner was sentenced to a term of thirty years in the custody of the respondent, execution suspended after twenty years, and thirty-five years of probation. Id., 536.

         On August 9, 2011, the self-represented petitioner filed a petition for a writ of habeas corpus, alleging that he received the ineffective assistance of trial counsel, who failed to call a witness to testify on his behalf. After this court affirmed the petitioner's conviction, on August 12, 2013, appointed counsel for the petitioner filed an amended petition for a writ of habeas corpus, alleging the ineffective assistance of trial and appellate counsel.[2] The habeas court tried the case in December, 2013, and issued its memorandum of decision on July 1, 2014. The habeas court granted the amended petition on the ground that the petitioner's constitutional right to the effective assistance of trial and appellate counsel had been violated. On July 16, 2014, the habeas court granted the respondent's petition for certification to appeal.[3] The respondent appealed.

          [162 Conn.App. 508] The standard of review regarding a claim of ineffective assistance of trial and appellate counsel is well-known. " Although the underlying historical facts found by the habeas court may not be disturbed unless they are clearly erroneous, whether those facts constituted a violation of the petitioner's rights under the sixth amendment is a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case. . . . As such, that question requires plenary review by this court unfettered by the clearly erroneous standard. . . .

          " A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, [466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)]. This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. . . . It is axiomatic that the right to counsel is the right to the effective assistance of counsel." (Citation omitted; internal quotation marks omitted.) Thiersaint v. Commissioner of Correction, 316 Conn. 89, 100-101, 111 A.3d 829 (2015).

         The petitioner's allegations of ineffective assistance of counsel center on trial counsel's failure to ask the trial court to give a cautionary instruction to the jury at the time evidence of the petitioner's alleged prior, uncharged sexual misconduct was admitted into evidence and to file a request to charge consistent with State v. DeJesus, 288 Conn. 418, 476, 953 A.2d 45 (2008) (en banc). The petitioner claims his appellate counsel provided ineffective assistance by failing to raise the unpreserved instructional error on appeal. To provide the legal context for those allegations, we briefly review the law regarding the admission of prior, uncharged sexual misconduct evidence established by our Supreme Court in DeJesus.

          [162 Conn.App. 509] In DeJesus, our Supreme Court was called upon to determine whether it had " the authority to reconsider the liberal standard for the admission of uncharged sexual misconduct evidence in sexual assault cases despite the adoption of the code by the judges of the Superior Court codifying the common-law rules of evidence." [4]Id., 439. In that case, the defendant " claim[ed] that the liberal standard of admission [of uncharged sexual misconduct evidence] should be overruled because it is inadequate to demonstrate the existence of a genuine plan in the defendant's mind, and crimes of a sexual nature are neither more secretive, aberrant nor pathological than crimes of a nonsexual nature. . . . [Our Supreme Court agreed] with [the defendant] that, in light of [its] recent clarification of the nature and scope of the common scheme or plan exception . . . evidence of uncharged misconduct admitted under the liberal standard ordinarily does not reflect the existence of a genuine plan in the defendant's mind. Nonetheless, given the highly secretive, aberrant and frequently compulsive nature of sex crimes, [it concluded] that the admission of uncharged misconduct evidence under the liberal standard is warranted and, therefore, [it adopted] this ...


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