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Helmedach v. Commissioner of Correction

Court of Appeals of Connecticut

September 27, 2016


          Argued: April 18, 2016

         Appeal from Superior Court, judicial district of Tolland, Cobb, J.

          Robert J. Scheinblum, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Adrienne Maciulewski, assistant state's attorney, for the appellant (respondent).

          Conrad Ost Seifert, assigned counsel, for the appellee (petitioner).

          Lavine, Prescott and Mihalakos, Js.


          PRESCOTT, J.

         The respondent, the Commissioner of Correction, appeals from the judgment of the habeas court in favor of the petitioner, Jennifer Helmedach, granting her petition for a writ of habeas corpus.[1] On appeal, the respondent claims that the habeas court improperly concluded that the petitioner's trial counsel provided ineffective assistance of counsel by failing to inform the petitioner of a plea offer until after she had testified at the underlying criminal trial. Having thoroughly reviewed the record prior to oral argument, [2]we concluded after oral argument that the habeas court properly granted the petitioner's petition for a writ of habeas corpus. Immediately thereafter, we orally affirmed the judgment of the habeas court.[3] Consistent with that ruling, we now issue this written opinion.

         The following facts, asset forthbyour Supreme Court in the petitioner's direct criminal appeal, and procedural history are relevant to this appeal. ‘‘On September 1, 2004 . . . the [petitioner, the petitioner's infant daughter, Ayanna, and the petitioner's boyfriend, David Bell, were driven] to the apartment of Sarah Tarini in Meriden. Tarini lived in the apartment with her ten year old daughter, Summer, and she had been allowing Michael Fontanella and Shanna Kropp to stay in one of the apartment's two bedrooms for several weeks. The [petitioner] and Bell asked Tarini if they could spend the night there and told her that they would be going to New York the next day. Tarini agreed to let the [petitioner], Ayanna and Bell stay in the bedroom where Fontanella and Kropp usually stayed.

         ‘‘On September 2, 2004, Kropp told the [petitioner] that she and Bell would have to leave Tarini's apartment. The [petitioner] appeared to Kropp to be aggravated and annoyed at this request. At about 6 p.m., the [petitioner] left the apartment with Ayanna, stating that she was going to call someone on a pay telephone to get a ride. The [petitioner] called the victim, Faye Bennett, who was a good friend of the [petitioner] and someone she had known since childhood, and asked her to come to the location of the pay telephone to pick her up. The victim, who was approximately six or seven months pregnant, arrived in her Chevrolet Blazer a short time later. The [petitioner] repaid the victim $20 that she previously had borrowed from her and the victim gave the [petitioner] a pair of sneakers as a birthday gift for Ayanna. At about 7 p.m., the victim called her boyfriend, told him that she and the [petitioner] were going to Tarini's apartment, and asked if he wanted to join them. He declined.

         ‘‘At approximately 7:30 p.m. that same evening, Tar-ini, Summer, Fontanella and Kropp left the apartment and walked to a nearby store to purchase cell phone minutes and ice cream. At approximately 7:45 p.m., Scott Baustien, who lived in the first floor apartment directly below Tarini's apartment, saw the [petitioner] and the victim walk by his window and heard them walk up to the second floor and enter Tarini's apartment. He then heard thumping noises. Baustien also noticed that the victim's Blazer, which was parked in the driveway, was blocking his car and a car belonging to Clarence Labbe, who lived above Tarini in the building's third floor apartment. Baustien telephoned Labbe to tell him about the Blazer. Labbe told Baustien that he also had heard banging noises coming from Tarini's apartment, which he assumed were caused by children playing.

         ‘‘Baustien then went outside to check the Blazer that was blocking the driveway and saw the [petitioner] seated behind the steering wheel and Ayanna in the passenger seat. He told the [petitioner] that she could not park there. The [petitioner], who appeared to Baustien to be extremely nervous and as ‘white as a ghost, ' said, ‘I'm sorry, I'm sorry, I'm sorry, ' and backed the Blazer quickly down the driveway toward the road, hitting the corner of the apartment building in the process. After Baustien returned to his apartment, he heard footsteps going down the front stairs of the apartment and a car horn beeping several times.

         ‘‘At approximately 8:15 p.m., Tarini, Summer, Fontanella and Kropp returned to the apartment. Tarini knocked on the door of the bedroom where the [petitioner] and Bell had been staying. When she received no response, she opened the door and saw that the room was covered with blood and that there was a body in a garbage bag on the bed. Tarini immediately asked Fontanella to take Summer upstairs to Labbe's apartment and called 911. A short time later, Captain Timothy Topulos and Officer Justin Hancort of the Meriden police department arrived at the scene. They met Tarini and Fontanella, who were visibly shaken, outside the building. They then entered Tarini's apartment and observed the bloody crime scene and the victim's body on the bed. They also saw a baby bottle on the bedroom floor. Topulos summoned medical personnel, who determined that the victim was dead.

         ‘‘Initially, the police misidentified the victim as the [petitioner]. It was not until the next day, during the victim's autopsy, that the victim was correctly identified as Bennett. The chief medical examiner determined that the cause of the victim's death was multiple stab wounds and strangulation. The [petitioner] and Bell were apprehended in the Bronx, New York, approximately eight days after the victim's murder.'' (Footnotes omitted.) State v. Helmedach, 306 Conn. 61, 66-69, 48 A.3d 664 (2012).

         During the jury trial that followed, ‘‘[t]he state's theory was that the [petitioner] had lured the victim to Tarini's apartment so that she and Bell . . . could steal the victim's car and money and escape to New York. The [petitioner] claimed that the evidence did not support a finding that she had lured the victim to the apartment so that she and Bell could rob her, and that her participation in the robbery after Bell's assault on the victim and his threat to kill her if she did not get the victim's car and wait for him in front of the building was the result of duress.'' Id., 69-70. Ultimately, however, the petitioner was found guilty of felony murder in violation of General Statutes § 53a-54c, robbery in the first degree in violation of General Statutes § 53a-134 (a) (1), and conspiracy to commit robbery in the third degree in violation of General Statutes §§ 53a-48 and 53a-136. She was sentenced by the trial court to a term of incarceration of thirty-five years. The judgment of conviction was affirmed on appeal. See State v. Helmedach, 125 Conn.App. 125, 8 A.3d 514 (2010), aff'd, 306 Conn. 61, 48 A.3d 664 (2012).

         Thereafter, on November 19, 2014, the petitioner filed an amended petition for a writ of habeas corpus, alleging ineffective assistance of trial counsel. The petitioner claimed that the performance of her trial counsel, Richard Reeve, was deficient because he failed to timely and meaningfully communicate a plea offer of ten years to the petitioner.[4] On November 19 and December 12, 2014, the habeas court, Cobb, J., held a trial in which it heard testimony from the petitioner; Reeve; Gary Nicholson, the assistant state's attorney who prosecuted the case; and Michael Sheehan, Reeve's law partner.

         After trial, the habeas court granted the petition for a writ of habeas corpus. In a corrected written memorandum of decision dated August 26, 2015, [5] the court concluded that Reeve's failure to relay the favorable offer to the petitioner in a timely manner before it was withdrawn fell below the objective standard of reasonableness required by attorneys under the state and federal constitutions. The habeas court granted certification to appeal. This appeal followed.

         The respondent claims that the habeas court improperly concluded that Reeve had provided ineffective assistance to the petitioner by delaying to inform her of a plea offer until after she had completed her trial testimony. More specifically, the respondent contends that the habeas court improperly relied on Missouri v. Frye, U.S., 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), and Sanders v. Commissioner of Correction, 83 Conn.App. 543, 851 A.2d 313, cert. denied, 271 Conn. 914, 859 A.2d 569 (2004), in finding that Reeve's performance was deficient, because neither Frye nor Sanders addresses whether it is reasonable trial strategy for a defense attorney to delay informing the client of a plea offer if valid strategic reasons exist for that decision. The respondent also argues that Reeve's performance was objectively reasonable under the circumstances.

         In response, the petitioner argues that Reeve's con- duct could not be reasonable trial strategy because, as a matter of law, the decision made by Reeve to delay informing the petitioner of a favorable plea offer is not one that counsel constitutionally is allowed to make because it undermined the petitioner's ability to meaningfully exercise a right that belongs solely to her. Thus, in the petitioner's view, Reeve's conduct can not be characterized as a matter of trial strategy. The petitioner alternatively contends that if this court decides that Reeve's decision to delay communicating the plea offer to her was a matter of strategy, it should conclude that Reeve did not make a reasonable strategic decision under the circumstances. We agree with the petitioner that Reeve's decision to delay informing the petitioner about a plea offer was not within the realm of strategic decisions that an attorney is allowed to make.

         The following additional facts, as found by the habeas court, are relevant to this claim. ‘‘Reeve was appointed to represent the petitioner after her arrest and represented her throughout the pretrial and trial proceedings in this case. . . . Like most criminal cases, the parties in this case engaged in pretrial plea negotiations in an attempt to resolve the case prior to trial. On December 18, 2006, the state made its first plea offer to the petitioner during a supervised pretrial with Judge Damiani. With Judge Damiani's assistance, the state offered the petitioner a plea to robbery or conspiracy to commit robbery and incarceration in the range of fifteen to twenty years, with the right to argue to the court that it impose a sentence at the low range or the ‘floor.' The judge approved the [plea offer], but indicated to [Reeve] at the pretrial that he would likely sentence the petitioner at the high end of the range, absent some compelling circumstances that arose at the sentencing hearing. [Reeve] said he would discuss the offer with the petitioner and the state indicated it would discuss it with the victim's family.

         ‘‘[Reeve] met with the petitioner and relayed to her the offer. He advised the petitioner about the strengths and weaknesses of the state's case, her defense and the risks of going to trial. The petitioner agreed to accept the offer. On January 10, 2007, [Reeve] wrote to [Nicholson] and indicated that the petitioner accepted the offer. . . . [Reeve] did not receive a written response from [Nicholson].

         ‘‘At the next supervised pretrial, in mid-January 2007, [Nicholson] informed [Reeve] and the judge that the victim's family did not support the proposed agreement, and as a result, the state was withdrawing it. As a result, the parties decided to forgo plea negotiations until after the petitioner's codefendant, [Bell], had been tried or his case resolved.

         ‘‘On May 23, 2007, Bell was convicted on all charges and on December 14, 2007, was sentenced to eighty-five years incarceration.

         ‘‘This case was then placed on the trial list.

         ‘‘On August 24, 2007, [Reeve] filed a motion to compel specific performance of the original plea offer. That motion was denied [by the court].

         ‘‘The case proceeded to trial and while the parties were selecting the jury, the state made its second plea offer to the petitioner. That offer was twenty-two years, suspended after seventeen years incarceration. After discussing this offer with [Reeve], the petitioner rejected it.

         ‘‘The state then made its third offer, during jury selection or during the first days of its case-in-chief. That offer was fourteen years to serve. The petitioner rejected this third offer, after conferring with [Reeve]. [Reeve] explained to the petitioner that if convicted she would be facing at least thirty years in prison, as the felony murder charge had a twenty-five year mandatory minimum sentence.

         ‘‘The petitioner rejected the second and third offers because the state's case had been weakened as a result of its key witness', Gabriel Colon, recantation of his prior oral statement to police that the petitioner spoke to him about participating in the setup of the robbery of the victim. Because Colon had not provided a written statement to police, his prior statement could not be introduced under [the] Whelan doctrine.[6] Colon was the only witness that was able to tie the petitioner directly to the robbery. Tying the petitioner to the robbery was essential to establishing the underlying felony on the felony murder charge.

         ‘‘The petitioner's criminal trial was held on various days between October 1, 2007, and October 16, 2007. On Friday, ...

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