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Bozelko v. Comm'r of Corr.

Appellate Court of Connecticut

February 2, 2016

CHANDRA BOZELKO
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, Cobb, J.; judgment denying the petition; thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court.

          Appeal dismissed.

          SYLLABUS

         The petitioner, who had pleaded guilty and was convicted of three counts of attempt to tamper with a juror, sought a writ of habeas corpus claiming that her trial counsel had rendered ineffective assistance by failing to conduct an adequate investigation prior to the entry of her plea. While the petitioner's trial on certain unrelated prior criminal charges was pending, she used a " Spoofcard" to change her caller identification information, disguise her voice as male, and call several jurors assigned to that case using a prepaid cell phone. During the calls, the petitioner instructed the jurors that they should not find her guilty of the pending charges. The calls took place during a one and one-half hour period of time and were recorded. The petition for a writ of habeas corpus claimed that, prior to the petitioner's plea, her trial counsel had failed to conduct an adequate investigation into the telephone records, which she alleged would have revealed her innocent use of a landline in her home during the same time frame in which the cell phone calls were placed to the jurors. The habeas court denied the petition, concluding that the petitioner had not met her burden of proving deficient performance because trial counsel's investigation was objectively reasonable, and the petitioner could not prove prejudice because it was not reasonably probable that the telephone record evidence would have changed her decision to plead guilty. Subsequently, the habeas court denied the petition for certification to appeal, and the petitioner appealed to this court. Held that the petitioner failed to demonstrate that the habeas court abused its discretion in denying her petition for certification to appeal, as she did not demonstrate that the issues she raised as to her ineffective assistance of counsel claim were debatable among jurists of reason, that a court could resolve the issues differently, or that the question raised deserved encouragement to proceed further: the habeas court did not err in concluding that the pretrial investigation of the petitioner's counsel was objectively reasonable under the circumstances of this case, that court having credited the testimony of the petitioner's counsel that he hired an investigator and found the telephone records to be unhelpful to the petitioner's defense because the records did not prove that the petitioner had made the calls from the landline, and, even if the petitioner had made those calls, due to their brief duration the petitioner still had time in which to telephone the jurors using the cell phone; moreover, the habeas court's conclusion that the investigation of the petitioner's counsel was objectively reasonable was based on the fact that he had determined that the petitioner's defense would have required her to testify and that the jury would have been able to match the voice on the tape recorded telephone calls to the petitioner's voice; furthermore, contrary to the petitioner's claim, the habeas court used the proper prejudice standard by clearly assessing whether the petitioner, but for counsel's alleged ineffective performance, would not have pleaded guilty and would have proceeded to trial, and the habeas court's analysis of the strength of the state's case was part of its determination of whether the petitioner's decision to plead guilty likely would have changed if the evidence adduced at the habeas trial had been developed at the time of the plea.

         Chandra Bozelko, self-represented, the appellant (petitioner).

         Kathryn W. Bare, assistant state's attorney, with whom, on the brief, were Kevin D. Lawlor, state's attorney, Angela R. Macchiarulo, senior assistant state's attorney, and Yamini Menon, special deputy assistant state's attorney, for the appellee (respondent).

         DiPentima, C. J., and Beach and Bear, Js. BEACH, J. In this opinion the other justices concurred.

          OPINION

          [162 Conn.App. 717] BEACH, J.

          The petitioner, Chandra Bozelko, appeals from the judgment of the habeas court denying her petition for a writ of habeas corpus. She claims that the court erred in denying her claim of ineffective assistance of trial counsel due to a failure to investigate effectively.[1] She further argues that the court abused its [162 Conn.App. 718] discretion in denying certification to appeal. We dismiss the appeal.

         The petitioner claims that her counsel provided ineffective assistance in the course of defending her against charges of jury tampering. She pleaded guilty to and was convicted of making telephone calls to jurors during her criminal trial on certain otherwise unrelated prior charges.[2] The habeas court recited the following facts with respect to the jury tampering: " On the evening of October 4, 2007, while the petitioner's criminal jury trial was underway, several jurors assigned to the case received telephone calls at their residences from a telephone number identified on their respective caller identification systems as originating from Kate's Paperie, a business establishment in Greenwich, Connecticut. A male caller asked the jurors questions regarding their status as jurors and instructed the jurors that they should not find the petitioner guilty of the pending charges. The petitioner submitted an affidavit to the court indicating that she received several calls from jurors at her residence on October 8, 2007.

         " The police conducted an extensive investigation and determined that the calls did not originate from Kate's Paperie or from the jurors' residences. The police determined that the caller identification information for these calls had been 'spoofed,' a process whereby the caller attaches false identity contact information to the communication. The police discovered that a 'SpoofCard' was purchased on April 12, 2007, with the computer located in the petitioner's residence and her mother's credit card. A SpoofCard allows the user to change [162 Conn.App. 719] caller identification information through the use of a computer service. A SpoofCard user also has the ability to change his or her voice to that of a male or female.

         " The call records showed that 123 calls were made with the [Spoof]card beginning on April 12, 2007, and ending on October 4, 2007. Ninety-four of the calls originated from the petitioner's father's fax machine phone number, nineteen of the calls originated from the petitioner's residential phone number and ten of the calls originated from a Tracfone phone number. The Tracfone, a prepaid cell phone, was activated from the computer in the petitioner's residence. The SpoofCard and the Tracfone were used to place the phone calls to the jurors on October 4, 2007. The calls took place over the span of an hour and a half, beginning at 7:22 p.m. and ending at 8:52 p.m. All of the phone calls made using the SpoofCard were recorded.

         " A second SpoofCard was purchased on October 8, 2007, with the computer located in the petitioner's residence and a prepaid credit card that was found in the petitioner's bedroom when the search warrant was executed. The second SpoofCard and the Tracfone were used to make calls to the petitioner's residence from phone numbers spoofed to appear as if the calls originated from the jurors' residences. There were no recordings made of these calls." The habeas court further explained that, in connection with this incident, " [t]he petitioner was charged with six counts of attempt to commit tampering with a juror in violation of General Statutes § § 53a-49 (a) (2) and 53a-154, one count of false statement in the second degree in violation of General Statutes [Rev. to 2007] § 53a-157b and one count of tampering with physical evidence in violation of General Statutes § 53a-155(a)(1). The petitioner was also charged with [crimes] arising from the same allegations in a separate case in the Stamford judicial district. [162 Conn.App. 720] The petitioner's exposure on these charges was approximately fifty years.

         " Attorney Dean Popkin represented the petitioner. The petitioner entered a guilty plea, under the Alford doctrine,[3] to three counts of attempt to commit tampering with a juror on March 30, 2010. On May 24, 2010, the petitioner was sentenced to twenty-seven months incarceration on each count, to run concurrently, for a total effective sentence of twenty-seven months imprisonment.[4] The ...


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