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Fine v. Commissioner of Correction

Appellate Court of Connecticut

February 9, 2016

PAUL FINE
v.
COMMISSIONER OF CORRECTION

         Argued 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.

          SYLLABUS

         The 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 determination.

         Robert T. Rimmer, assigned counsel, for the appellant (petitioner).

         Lawrence J. Tytla, supervisory assistant state's attorney, with whom, on the brief, was Michael L. Regan, state's attorney, for the appellee (respondent).

         DiPentima, C. J., and Mullins and Bear, Js. DiPENTIMA, C. J. In this opinion the other judges concurred.

          OPINION

          [163 Conn.App. 78] DiPENTIMA, C. J.

          The 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.

         The 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.

         The 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 voluntary.

         The 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.

         In its 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[1] by either Heller or Perry. [163 Conn.App. 80] Accordingly, it denied the petition for a writ of habeas corpus.

         The 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 ...


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