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Sinchak v. Commissioner of Correction

Court of Appeals of Connecticut

May 23, 2017

ANTHONY SINCHAK
v.
COMMISSIONER OF CORRECTION

          Argued November 17, 2016

         Appeal from Superior Court, judicial district of Tolland, Swords, J. [judgment]; Mullins, J. [judgment].

          Michael W. Brown, assigned counsel, for the appellant (petitioner).

          Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Eva B. Lenczewski, supervisory assistant state's attorney, for the appellee (respondent).

          Lavine, Sheldon and Flynn, Js.

          OPINION

          SHELDON, J.

          The petitioner, Anthony Sinchak, appeals from the judgment of the habeas court, denying his fifth amended petition for a writ of habeas corpus in this action, wherein he challenges the lawfulness of his conviction of murder and kidnapping in the first degree, which was rendered against him after a jury trial in the judicial district of Waterbury in 1995. On appeal, the petitioner claims that the habeas court erred in rejecting his claims that: (1) his due process rights were violated at his underlying criminal trial because the jury's guilty verdict was against the weight of the evidence; (2) he was deprived of effective assistance of counsel in the underlying criminal trial by the failure of his trial counsel, Michael Graham, to marshal the facts in his favor during closing argument and to move, after the verdict, for a judgment of acquittal on each charge of which he was found guilty on the ground that the jury's guilty verdict was against the weight of the evidence; (3) he was deprived of effective assistance of counsel on direct appeal from his underlying conviction by the failure of his appellate counsel, Pamela S. Nagy, to raise his weight of the evidence claims as grounds for reversing the conviction; and (4) he was deprived of effective assistance of counsel in a prior habeas corpus proceeding, in which he challenged the lawfulness of the same underlying conviction by the failure of his prior habeas counsel, Donald J. O'Brien, to raise the previously described clams of ineffective assistance of both trial and appellate counsel as grounds for obtaining relief in that proceeding. We affirm the judgment of the habeas court.

         The following facts and procedural history are relevant to the petitioner's claims on appeal. On July 27, 1992, the victim, Kathleen Gianni, was working as a bartender at the Freight Street Social Club (social club), an illegal after-hours social club in Waterbury. The social club was jointly owned by Gianni's close friend, Jo Orlandi, and Dennis O'Connor, the president of the Helter Skelter Motorcycle Club (motorcycle club), of which the petitioner was a member. Dennis O'Connor's brother, Terrence O'Connor, who also was amotorcycle club member, worked as a doorman at the social club. State v. Sinchak, 47 Conn.App. 134, 136, 703 A.2d 790 (1997), appeal dismissed, 247 Conn. 440, 721 A.2d 1193 (1999), cert. denied, 319 Conn. 926, 125 A.3d 201 (2015).

         Gianni had only recently returned to work at the social club, at the urging of Orlandi, following a brief, self-imposed absence arising from her fear of retaliation by members of the motorcycle club after she gave a statement to police concerning a July 12, 1992 incident between the motorcycle club and the Los Solidos gang, following which seven motorcycle club members, including Dennis O'Connor, were arrested.

         As described by this court in its decision affirming the petitioner's underlying conviction on direct appeal, Orlandi and Gianni opened the social club for business at approximately 1a.m. On July 27, 1992, after the motorcycle club had ‘‘held a barbecue fund-raiser to raise bail money for some incarcerated bikers. Both Orlandi and the [petitioner] attended the barbecue. The [petitioner] was accompanied by his girlfriend, Laura Ryan. . . . A number of people visited the [social] club that morning, including the [petitioner], Ryan, Terrence O'Connor and several other motorcycle club members. Also at the club that morning were Michael Lambo and James Palomba.

         ‘‘The [petitioner] and Ryan remained in the back office when Orlandi began to lock the front doors of the club. The [petitioner] walked out from the back office and fired a shot at Gianni, who was standing behind the far end of the bar. The [petitioner] threatened Orlandi and Ryan with the gun, stating that he could not allow any witnesses to the shooting and then fired several more shots at Gianni who lay on the floor behind the bar moaning and gasping. After the [petitioner] fired the final, fatal shot, he grabbed Orlandi and Ryan, placed the gun to their heads and announced that the three of them were going to leave the club and stay together until the whole incident was straightened out.

         ‘‘The three then went from the club to the Torrington residence of Lisa Fruin, the mother of the [petitioner's] infant son. Once at Fruin's residence, the [petitioner] disassembled the gun and ordered Fruin to dispose of the gun parts in a nearby dumpster. The [petitioner] disposed of the clothes that he had been wearing when he shot Gianni. The [petitioner] forced Ryan and Orlandi to remain with him and tied a bell to Orlandi's ankle while she slept so that he could hear if she attempted to escape.

         ‘‘Around noon the next day, the [petitioner] allowed Orlandi to leave, but ordered Ryan to stay with her for at least twenty-four hours. Orlandi returned home with Ryan and they remained there until approximately 4 p.m. the next day. At that time, Ryan left Orlandi's home with Dave Martorelli, another motorcycle club member. That night, the [petitioner] and Martorelli disposed of Gianni's body and attempted to burn down the club.

         ‘‘For the next several days, Orlandi denied any knowledge of Gianni's disappearance. On July 29, 1992, Orlandi opened the club at the request of the police, where evidence of the attempted arson and signs of the violence were discovered. The next day, Orlandi fled to Long Island, but ultimately returned to Connecticut and gave several statements to the police detailing the murder.'' State v. Sinchak, supra, 47 Conn.App. 136-38.

         On April 21, 1995, following a jury trial at which the foregoing evidence was presented, the petitioner was found guilty of murder in violation of General Statutes § 53a-54a and two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B). Sinchak v. Commissioner of Correction, 126 Conn.App. 684, 685, 14 A.3d 343 (2011). The petitioner was later sentenced on those charges to a total effective term of ninety-six years in prison.[1] This court affirmed the petitioner's conviction on direct appeal. State v. Sinchak, supra, 47 Conn.App. 136.[2]

         The petitioner subsequently commenced three habeas corpus actions challenging the lawfulness of his conviction. ‘‘On July 26, 2000, and July 3, 2001, the petitioner filed two separate pro se petitions for a writ of habeas corpus, which the habeas court consolidated for trial.'' Sinchak v. Commissioner of Correction, 126 Conn.App. 670, 672, 14 A.3d 348, cert. denied, 301 Conn. 901, 17 A.3d 1045 (2011). The consolidated petitions alleged that the petitioner had been deprived of effective assistance of counsel in his underlying criminal trial in several ways not claimed in the instant appeal.[3]Id.On June 29, 2007, the habeas court, Swords, J., issued a memorandum of decision denying the consolidated petitions. Id. The petitioner then petitioned for certification to appeal from the habeas court's judgment, which the habeas court also denied. Id. This court ultimately dismissed the petitioner's appeal from the habeas court's denial of the consolidated petitions. Id., 671.

         On July 25, 2007, while the petitioner's appeal from the denial of the consolidated petitions was still pending, he commenced this action. In his original petition for a writ of habeas corpus herein, the petitioner alleged that he had received ineffective assistance of counsel in his prior habeas corpus proceeding. Sinchak v. Commissioner of Correction, supra, 126 Conn.App. 685. Because, however, the petitioner's appeal from the denial of relief in that proceeding was still pending at the time he commenced this action, the habeas court, Swords, J., concluded that his claims in this action were ‘‘premature.'' Id., 686. On that basis, the court dismissed this action, sua sponte, for lack of subject matter jurisdiction. Id. The court thereafter granted the petitioner's petition for certification to appeal from its judgment of dismissal. Id.

         On the petitioner's ensuing appeal from the habeas court's judgment of dismissal in this action, this court reversed that judgment on the ground that the habeas court improperly failed to appoint counsel for the petitioner after his original petition herein was docketed. Id., 692. On that basis, we remanded this case to the habeas court for further proceedings on the merits of the petitioner's claims. Id.

         Before this action was brought to trial on remand, the petitioner filed several amended petitions expanding its substantive scope.[4] The action was ultimately tried on the petitioner's fifth amended petition, filed January 3, 2014 (operative petition), in which he pleaded that: (1) his due process rights were violated in his underlying criminal trial because the jury's guilty verdict was against the weight of the evidence; (2) his trial counsel rendered ineffective assistance in the underlying trial by failing ‘‘adequately [to] marshal . . . facts during . . . closing argument'' and failing to ‘‘file a motion for judgment of acquittal'' on the ground that the jury's guilty verdict was against the weight of the evidence; (3) his appellate counsel rendered ineffective assistance on direct appeal from his underlying conviction by failing to raise his weight of the evidence claims as grounds for reversing the conviction; and (4) his prior habeas counsel rendered ineffective assistance in the prior habeas corpus proceeding by failing to raise either his weight of the evidence claims or his previously described claims of ineffective assistance of trial and appellate counsel as grounds for relief in that proceeding.

         In his return to the petitioner's operative petition dated January 14, 2014, the respondent, the Commissioner of Correction, pleaded two special defenses.[5] His first special defense, which was pleaded only as to the first count of the operative petition, was that the petitioner had procedurally defaulted on his due process claim that the jury's guilty verdict was against the weight of the evidence. In support of that special defense, the respondent alleged that the petitioner had failed to raise his due process claim at his underlying criminal trial or on direct appeal from his underlying conviction, and that the petitioner could not establish sufficient cause for his procedural default or prejudice arising from it to excuse such default and permit review of the defaulted claims for the first time in this proceeding. The second special defense, which was separately pleaded as to each count of the petition, was that the claim therein pleaded was not a claim upon which relief could be granted in a habeas corpus proceeding because, under our case law, specifically State v. Griffin, 253 Conn. 195, 199-202, 749 A.2d 1192 (2000), the weight of the evidence claim on which it was based could only be assessed by the trial judge who had presided over the trial where the challenged verdict was returned.

         The petitioner replied to the respondent's first special defense in a pleading dated January 15, 2014, by pleading in avoidance that if his due process claim was procedurally defaulted, the procedural default was cured by cause and prejudice, in that he had received ineffective assistance of counsel in each prior proceeding where his defaulted claim could have been raised. The petitioner denied the respondent's second special defense, but pleaded, in the alternative, that if our law supported that special defense, ‘‘the law should be changed.''

         After a two day trial, the habeas court, Mullins, J., denied the petitioner's operative petition for a writ of habeas corpus. In so doing, the court first ruled that the petitioner had procedurally defaulted on his weight of the evidence claims by failing to raise them either at trial or on direct appeal. Thereafter, it ruled that the petitioner could not lift the bar to review of those procedurally defaulted claims by proving cause and prejudice based upon alleged ineffective assistance by trial or appellate counsel in failing to raise them because, as the respondent had pleaded in his second special defense, the habeas court itself was not legally competent to assess or make rulings as to the probable merits of those claims. In support of that ruling, the court determined, more particularly, that in order to establish either prong of ineffective assistance of counsel based upon the failure of his counsel to raise the petitioner's weight of the evidence claims either at trial or on direct appeal, the petitioner was required to establish that there was a reasonable probability that he would have prevailed on those claims had counsel timely raised them. Because, however, under Griffin, only the judge who presided over the trial where a challenged verdict was returned is legally competent to decide if that verdict was against the weight of the evidence, a judge in a later proceeding, such as a direct appeal or a habeas corpus proceeding, is not legally competent to decide such a claim on the basis of the cold printed record ...


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