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Merle S. v. Commissioner of Correction

Court of Appeals of Connecticut

August 16, 2016

MERLE S.[*]
v.
COMMISSIONER OF CORRECTION

          Argued May 23 2016.

         (Appeal from Superior Court, judicial district of Tolland, Oliver, J.)

          Albert J. Oneto IV, assigned counsel, with whom, on the brief, was David B. Rozwaski, assigned counsel, for the appellant (petitioner).

          Jacob L. McChesney, special deputy assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and Eva Lenczewski, supervisory assistant state’s attorney, for the appellee (respondent).

          Sheldon, Prescott and West, Js.

          OPINION

          WEST, J.

         The petitioner, Merle S., appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. Specifically, the petitioner claims that the habeas court abused its discretion by denying his petition for certification to appeal, and erred in concluding (1) that he had proce-durally defaulted on his claim that his guilty plea was involuntarily tendered and (2) that his trial counsel’s performance was not deficient.[1] We disagree with the petitioner, and, accordingly, we dismiss the appeal.

         The record reveals the following relevant procedural history. On December 2, 2010, the petitioner pleaded guilty on a substitute information to one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (3)[2] and one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (1).[3] He also admitted to two violations of probation. The petitioner was represented by Errol Skyers, special public defender. The court, Damiani, J., imposed a total effective sentence of fifteen years imprisonment, execution suspended after nine years, followed by five years of probation. The petitioner did not move to withdraw his plea or challenge it in a direct appeal.

         On July 21, 2014, the petitioner, through appointed counsel, filed a revised amended petition for writ of habeas corpus alleging, inter alia, that the petitioner’s heavily medicated state at the time he entered his guilty plea rendered his plea involuntary. The petitioner further alleged that his trial counsel was ineffective by failing to inquire about his medicated state at the time the plea was entered and, therefore, did not ensure that he was competent to plead guilty.[4] The respondent, the Commissioner of Correction, filed a return, raising the special defense of procedural default as to any claim that the petitioner’s plea was involuntary. The petitioner filed his response asserting that his claims were based on ineffective assistance of counsel and, therefore, not subject to procedural default.

         The habeas trial, at which the petitioner and his trial counsel testified, was held on August 7, 2014. The court issued its memorandum of decision denying the petition on September 19, 2014. The court concluded that the petitioner had procedurally defaulted on his first claim relating to the voluntariness of his plea, separate from any claim of ineffective assistance of counsel. In so doing, the court refused to address the petitioner’s argument that his assertion of ineffective assistance of counsel sheltered this claim from procedural default. The court also concluded that the petitioner failed to prove that his trial counsel had provided ineffective assistance by failing to ensure that the petitioner’s medicated state did not affect his ability to knowingly, voluntarily, and intelligently plead guilty. The petitioner filed a petition for certification to appeal from the habeas court’s denial of his petition for a writ of habeas corpus, which the habeas court denied. This appeal followed.

         We first set forth our standard of review. ‘‘Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion.’’ Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). In order to prove an abuse of discretion, the petitioner must show ‘‘that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.’’ (Emphasis in original; internal quotation marks omitted.) Id., 616. ‘‘If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.’’ Id., 612.

         In considering the merits of the petitioner’s underlying claims, we ‘‘cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.’’ (Internal quotation marks omitted.) Ricks v. Commissioner of Correction, 98 Conn.App. 497, 502, 909 A.2d 567 (2006), cert. denied, 281 Conn. 907, 916 A.2d 49 (2007). To the extent that the habeas court relies on credibility determinations of witnesses in deciding the issues, this court ‘‘must defer to the trier of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observations of their conduct, demeanor and attitude.’’ (Internal quotation marks omitted.) State v. Kendrick, 314 Conn. 212, 223, 100 A.3d 821 (2014).

         When faced with questions of procedural default, ‘‘[t]he habeas court’s conclusion that the petitioner’s sentencing claim was . . . procedural default[ed] involves a question of law. Our review is therefore plenary.’’ Johnson v.Commissioner of Correction, 285 Conn. 556, 566, ...


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