December 1, 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, Oliver, J.; judgment denying the petition;
thereafter, the court denied the petition for certification
to appeal, and the petitioner appealed to this court.
petitioner, who had pleaded guilty and was convicted of
murder and assault in the first degree, sought a writ of
habeas corpus, claiming that his trial counsel had rendered
ineffective assistance by failing to ensure that his plea was
knowing, intelligent, and voluntary. Specifically, he alleged
that counsel had told him that he would serve a forty year
sentence if he pleaded guilty, and not the fifty year
sentence that he received. The habeas court determined that
neither his initial trial counsel nor his second trial
counsel had rendered deficient performance, and that court
denied the habeas petition. Thereafter, the petitioner filed
a petition for certification to appeal, claiming that it was
erroneous for the habeas court to have determined that
ineffective assistance of standby counsel was not a claim for
which habeas relief could be granted. The habeas court 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, as the issue concerning the alleged
ineffective assistance of standby counsel was not debatable
among jurists of reason, a court could not resolve the issue
in a different manner, and the questions presented did not
deserve encouragement to proceed further: the present case
did not concern standby counsel as alleged in the petition
for certification to appeal, and this court would not review
the claims raised in the petitioner's brief to this court
that his second trial counsel had rendered ineffective
assistance during the plea negotiations because those claims
were not made in the petition for certification to appeal;
moreover, even if this court considered that claim, this
court would conclude that the habeas court did not abuse its
discretion in denying the petition for certification to
appeal, as the only evidence supporting the petitioner's
claim that he expected to receive forty years in exchange for
his guilty plea was his testimony, which the habeas court did
not credit, and this court would not revisit that credibility
T. Rimmer, assigned counsel, for the appellant (petitioner).
J. Tytla, supervisory assistant state's attorney, with
whom, on the brief, was Michael L. Regan, state's
attorney, for the appellee (respondent).
C. J., and Mullins and Bear, Js. DiPENTIMA, C. J. In this
opinion the other judges concurred.
Conn.App. 78] DiPENTIMA, C. J.
petitioner, Paul Fine, appeals from the judgment of the
habeas court denying his petition for a writ of habeas
corpus. On appeal, the petitioner claims that the court (1)
abused its discretion in denying his petition for
certification to appeal the denial of his petition for a writ
of habeas corpus, and (2) improperly determined that he
received effective assistance of counsel with respect to his
decision to plead guilty to murder in violation of General
Statutes § 53a-54a and assault in the first degree in
violation of General Statutes § 53a-59 (a) (1). We
dismiss the petitioner's appeal.
following facts and procedural history are relevant to this
appeal. On March 30, 1992, the petitioner pleaded guilty to
murder and assault in the first degree. In connection with
the petitioner's plea, the state recited the following
facts. On April 8, 1991, the petitioner shot Steven
O'Drain twice, causing fatal injuries. He then entered an
apartment and shot Yvonne O'Drain in the leg in front of
her two minor children. As a result, Yvonne O'Drain's
leg was amputated below the knee. After determining the
petitioner's plea to be knowing, intelligent and
voluntary, the court accepted his plea. On June 9, 1992, the
court sentenced the petitioner to fifty years incarceration.
petitioner commenced this habeas action and filed his first
amended petition on December 23, 2011. [163 Conn.App. 79] The
petitioner alleged that he had received ineffective
assistance of counsel from Attorney Gail Heller and "
one or more successor attorneys." Specifically, he
claimed that his plea was not knowing, intelligent and
respondent, the Commissioner of Correction, moved to dismiss
the petition on the basis that the petitioner previously had
withdrawn a prior petition with prejudice. See
Fine v. Commissioner of Correction, 147 Conn.App.
136, 138, 81 A.3d 1209 (2013). The habeas court granted the
respondent's motion. Id., 139. On appeal, we
reversed the judgment of the habeas court and remanded the
case for further proceedings. Id., 148. In
accordance with our opinion, a trial occurred on October 28,
2014. In an oral ruling on November 3, 2014, the court denied
the petition for a writ of habeas corpus.
decision, the habeas court found that Heller, a public
defender, initially had represented the petitioner at his
criminal trial. After the discovery of a conflict of
interest, Richard Perry, a special public defender, replaced
Heller as the petitioner's attorney. The habeas court
further found that after several months of pretrial
negotiations, the state offered and the defendant accepted a
plea deal where the petitioner would plead guilty to murder
and assault in the first degree and receive a sentence of
fifty years to serve. The habeas court rejected the
petitioner's claim that he had been told that he would
serve forty years incarceration. It found that his plea was
" knowing and voluntary," and that there was no
evidence that he had been forced to enter the plea. The court
determined that there had been no deficient
performance by either Heller or Perry. [163
Conn.App. 80] Accordingly, it denied the petition for a writ
of habeas corpus.
petitioner filed a petition for certification to appeal on
the ground that " it was an error of law for the court
to find that ineffective assistance of standby counsel was
not a claim for which habeas relief might be granted."
The habeas court denied ...