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Brian S. v. Commissioner of Correction

Court of Appeals of Connecticut

April 25, 2017

BRIAN S.[*]
v.
COMMISSIONER OF CORRECTION

          Argued January 30, 2017

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

          Michael W. Brown, assigned counsel, for the appel- lant (petitioner).

          Timothy F. Costello, assistant state's attorney, with whom, on the brief, were David S. Shepack, state's attorney, and Angela R. Macchiarulo, senior assistant state's attorney, for the appellee (respondent).

          DiPentima, C. J., and Mullins and Flynn, Js.

          OPINION

          MULLINS, J.

         The petitioner, Brian S., appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court erred in concluding that he failed to prove that his criminal trial counsel had provided ineffective assistance. We affirm the judgment of the habeas court.

         The following facts and procedural history inform our review. After years of repeatedly sexually assaulting his minor daughter, the petitioner was arrested, charged, and convicted of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and one count of risk of injury to a child in violation of General Statutes § 53-21 (2).[1] This court affirmed the petitioner's conviction on direct appeal. State v. Brian L. S., 129 Conn.App. 902, 19 A.3d 275, cert. denied, 302 Conn. 907, 23 A.3d 1246 (2011).

         On September 17, 2014, the petitioner filed an amended petition for a writ of habeas corpus in which he alleged that his criminal trial counsel had provided ineffective assistance. After a trial, the court denied the petition. The court concluded that the petitioner failed to prove his claim because he failed to establish that counsel's performance had been deficient or that he was prejudiced by any alleged deficiencies. The court, thereafter, granted the petition for certification to appeal from the judgment denying the petitioner's habeas petition. This appeal followed.

         On appeal, the petitioner claims that the court erred in concluding that he failed to prove his claim of ineffective assistance of criminal trial counsel. The plaintiff specifically claims: ‘‘The habeas court erred by finding that the petitioner's right to the effective assistance of counsel was not violated by counsel's failure to adequately challenge the medical evidence offered by the prosecuting authority from the complainant's colpos-copic examination.''[2] He asserts that counsel's ability to challenge the medical evidence was hampered by his failure to consult ‘‘with a qualified expert with specific expertise in forensic medical examinations of suspected child abuse victims . . . .'' We are not persuaded.

         Before analyzing the petitioner's claim, we set forth the applicable law and the standard of review governing claims of ineffective assistance of counsel. ‘‘When reviewing the decision of ahabeas court, the facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . The issue, however, of [w]hether the representation [that] a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. . . . As such, that question requires plenary review by this court unfettered by the clearly erroneous standard. . . .

         ‘‘A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. . . . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. . . . It is axiomatic that the right to counsel is the right to the effective assistance of counsel. . . .

         ‘‘As enunciated in Strickland v. Washington, [466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] . . . [a] claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney's representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. . . . To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. . . . A court can find against a petitioner, with respect to a claim of ineffective assistance of counsel, on either the performance prong or the prejudice prong . . . .'' (Citations omitted; internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 319 Conn. 623, 631-32, 126 A.3d 558 (2015).

         ‘‘With respect to the performance prong of Strickland, we are mindful that [j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under ...


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