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Hanson v. Commissioner of Correction

Court of Appeals of Connecticut

November 15, 2016

KWEKU HANSON
v.
COMMISSIONER OF CORRECTION

          Argued September 8, 2016

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

          Kweku Hanson, self-represented, with whom, on the brief, was Norman A. Pattis, for the appellant (petitioner).

          Timothy F. Costello, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, Angela R. Macchiarulo, senior assistant state's attorney, and Tamara A. Grosso, assistant state's attorney, for the appellee (respondent).

          Beach, Mullins and Bishop, Js.

          OPINION

          BISHOP, J.

         The petitioner, Kweku Hanson, appeals from the judgment of the habeas court denying his petition for certification to appeal from the court's denial of his habeas corpus petition. Specifically, the petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal and erred in concluding that (1) Attorney Salvatore Bonanno did not represent the petitioner in the underlying criminal proceedings and therefore could not be the focus of an ineffective assistance of counsel claim; (2) Attorney Donald Freeman's representation of the petitioner was not ineffective; and (3) Assistant State's Attorney Thomas O'Brien's prosecution of the petitioner's cases in the criminal proceedings was not improper. We disagree with the petitioner and dismiss the appeal.

         The record reveals the following relevant factual and procedural history. The petitioner, an attorney who had practiced law for more than eighteen years, was arrested on four separate occasions on a number of charges arising from allegations that he had sexual relations with two minors, videotaped himself having sexual intercourse with one victim, took sexually provocative pictures of both victims, and later threatened those victims in an effort to dissuade them from cooperating in the prosecution of his cases. He was first arrested on September 23, 2005, and subsequently arrested on January 11, 2006, March 1, 2007, and April 4, 2007.

         On August 2, 2007, while self-represented, the petitioner pleaded guilty on a substitute information to the following counts: two counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1); two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2); two counts of tampering with a witness in violation of General Statutes § 53a-151; and one count of possession of child pornography in the first degree in violation of General Statutes § 53a-196 (d). The court, White, J., continued the case for sentencing, and, during that time, the petitioner unsuccessfully tried to withdraw his guilty pleas.

         On November 2, 2007, pursuant to the petitioner's August 2 pleas, the court, Koletsky, J., imposed upon the petitioner a total effective sentence of twenty-five years of incarceration, execution suspended after six years, and thirty years of probation. The petitioner directly appealed the court's judgments of conviction, which this court affirmed. State v. Hanson, 117 Conn.App. 436, 979 A.2d 576 (2009), cert. denied, 295 Conn. 907, 989 A.2d 604, cert. denied, 562 U.S. 986, 131 S.Ct. 425, 178 L.Ed.2d 331 (2010).

         Thereafter, the self-represented petitioner instituted this habeas action and, on March 4, 2013, filed his second amended petition for a writ of habeas corpus. In his petition, the petitioner alleged, inter alia, ineffective assistance of counsel as to Bonanno and Freeman and prosecutorial vindictiveness as to O'Brien.[1] Following a five day trial, the habeas court, Young, J., denied the petition in a written memorandum of decision.[2] The petitioner then 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. Additional factual and procedural history will be set forth as necessary.

         We begin by setting forth our general 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 the 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.

         ‘‘The underlying historical facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . Questions of law and mixed questions of law and fact receive plenary review.'' (Internal quotation marks omitted.) Crawford v. Commissioner of Correction, 294 Conn. 165, 174, 982 A.2d 620 (2009).

         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 witness that is ‘‘made on the basis of its firsthand observations of their conduct, demeanor and attitude.'' (Internal quotation marks omitted.) Lapointe v. Commissioner of Correction, 316 Conn. 225, 268, 112 A.3d 1 (2015). We turn now to the petitioner's specific claims.

         I

         The petitioner's first claim on appeal is that the habeas court abused its discretion when it denied his petition for certification to appeal from the court's dismissal of his claim of ineffective assistance of counsel as to Bonanno. The habeas court dismissed the claim after determining that Bonanno was not acting as the petitioner's counsel, and, therefore, could not properly be the focus of a claim of ineffective assistance of counsel. The respondent, the Commissioner of Correction, argues that the habeas court correctly concluded that the petitioner failed to show that Bonanno was acting as his counsel in the underlying criminal proceedings. We agree with the respondent.

         The following additional facts are relevant to our resolution of this claim. On March 16, 2007, Bonanno was present in court on the petitioner's behalf without having filed an appearance. There, he told the court, Prescott, J., that he was in discussions with the petitioner's family about being retained, and he asked for a short continuance. When Bonanno returned to court on March 19, 2007, he informed the court, Prescott, J., that he would not be filing an appearance on the petitioner's behalf, as he could not work out payment arrangements with the petitioner's family. The record reveals that, at this juncture, Bonanno had been paid $15, 000 by the petitioner's family, an amount less than he would require if the petitioner's three files were tried separately, which is how he believed the state would proceed. Bonanno subsequently returned the $15, 000 to the petitioner's family. As Bonanno was leaving the courtroom, the petitioner stated that he was interested in discussing a plea deal that day. The court asked Bonanno if he would be willing, even though he had not been retained, to discuss the petitioner's matters with the court, Gold, J., and O'Brien ...


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