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Bigelow v. Commissioner of Correction

Court of Appeals of Connecticut

August 1, 2017

DAMON BIGELOW
v.
COMMISSIONER OF CORRECTION

          Argued April 5, 2017

         Procedural History

         Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland and tried to the court, Fuger, J.; judgment denying the petition; thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court. Appeal dismissed.

          David B. Rozwaski, assigned counsel, for the appellant (petitioner).

          Nancy L. Chupak, senior assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and Angela R. Macchiarulo, senior assistant state's attorney, for the appellee (respondent).

          Alvord, Keller and Dennis, Js.

         Syllabus

         The petitioner, who had been convicted, on a plea of guilty, of several criminal and motor vehicle charges, filed a second petition for a writ of habeas corpus, claiming that his criminal trial counsel, Z, and his first habeas counsel, T, had rendered ineffective assistance. The petitioner alleged, inter alia, that T failed to raise claims that Z improperly advised and inadequately represented him during plea negotiations and during his plea canvass, and failed to file a motion for an examination for entry into a certain diversionary substance abuse program. The petitioner also alleged that T failed to raise a claim that Z was ineffective for failing to request three days of presentence confinement credit. The habeas court rendered judgment denying the petition and, thereafter, denied his petition for certification to appeal from the habeas court's judgment. On appeal to this court, the petitioner claimed, inter alia, that the habeas court had abused its discretion in denying his petition for certification and improperly denied his habeas petition. Held that the habeas court did not abuse its discretion in denying the petition for certification to appeal, as the petitioner failed to demonstrate that the issues he raised were debatable among jurists of reason, that a court could resolve those issues differently, or that the questions he raised deserved encouragement to proceed further, and, accordingly, his appeal was dismissed: the record supported the habeas court's factual findings underlying its conclusion that Z provided appropriate advice pertaining to the petitioner's guilty plea, as Z testified about the petitioner's willingness to accept certain of the state's plea offers, and about matters that Z generally discusses with clients, such as the petitioner, in preparation of a plea canvass, including those pertaining to the charges against them and the possible sentences they could receive; moreover, notwithstanding the petitioner's claim that had Z failed to adequately investigate the death of a certain witness on whom the state relied, significant other evidence supported the petitioner's underlying convictions, and nothing in the record suggested that the petitioner would have opted for a trial, as he had several pending cases that exposed him to significant jail time; furthermore, the court's findings with respect to the petitioner's claim regarding Z's failure to file a motion for examination for entry into the substance abuse program were not clearly erroneous, as the court could credit Z's testimony that no information was presented to him that would support a good faith basis to request such an examination, and Z did not improperly fail to seek three days of presentence confinement credit for time that the petitioner spent in lockup, as his discharge date would have remained unchanged because his longest concurrent sentence was not the one to which the credit applied.

          OPINION

          DENNIS, J.

         The petitioner, Damon Bigelow, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his second postconviction petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court (1) abused its discretion in denying his petition for certification to appeal and (2) improperly denied his petition for a writ of habeas corpus in which he claimed that counsel in both his underlying criminal prosecution and his first habeas proceeding rendered ineffective assistance. Because the petitioner has failed to demonstrate that the habeas court abused its discretion in denying the petition for certification to appeal, we dismiss the appeal.

         The following facts underlying the petitioner's convictions were set forth previously by this court. ‘‘In early 2008, the petitioner was a defendant in a number of criminal and motor vehicle matters pending in the Superior Court.[1] On September 24, 2008, while the petitioner was representing himself, the state extended a plea bargain to him that would have resolved all pending charges in exchange for guilty pleas and a total effective sentence of forty years incarceration, execution suspended after fifteen years, to be followed by a five year period of probation. The petitioner, who was free on bond, was given time to consider the offer.

         ‘‘Two days later, on September 26, 2008, the police executed a search and seizure warrant stemming from suspected drug trafficking activities at the petitioner's condominium. During the execution of the search warrant, the petitioner was arrested after police found a large quantity of heroin in a bedroom.[2] As a result of the additional charges, the state modified its original plea offer to reflect the new drug charges. Considering only the drug cases, the petitioner at trial would have faced forty-six years of mandatory minimum incarceration with a maximum sentence of life. The state's modified plea offer proposed that the petitioner actually serve twenty years as opposed to the original offer of fifteen.

         ‘‘On October 1, 2008, the petitioner retained the services of Attorney Eugene Zingaro. Although the petitioner initially appeared willing to accept the state's modified plea offer, Zingaro ultimately was successful in restoring the original plea offer.'' (Footnotes in original.) Bigelow v. Commissioner of Correction, 146 Conn.App. 737, 739, 80 A.3d 84 (2013). During the sentencing hearing, the court thoroughly canvassed the petitioner, determined that his pleas were knowing, intelligent and voluntary, and accepted them.[3] ‘‘On November 12, 2008, the petitioner accepted the original offer, pleaded guilty, and was sentenced to forty years incarceration, execution suspended after fifteen years, followed by five years of probation.'' Id., 739-40.

         Following his convictions, the petitioner brought two petitions for writs of habeas corpus.[4] The petitioner's second such petition was filed on July 5, 2012, and amended for the final time on September 14, 2014. In essence, the petitioner argued that his first habeas counsel, Melissa Toddy, rendered ineffective assistance by failing to raise a claim regarding the deficient performance of his trial counsel, Zingaro. Specifically, the petitioner alleged that Toddy should have pursued such a claim because Zingaro rendered ineffective assistance in failing (1) to properly advise him regarding his guilty plea, (2) to file an application to participate in a drug treatment program on his behalf, (3) to seek jail credit for three days that he spent in local lockup, and (4) to properly investigate the death of an informant on whom the state relied.

         In the second habeas trial, which is the subject of this appeal, the court heard testimony from the petitioner, Zingaro, and Toddy. Following the trial, the court issued a memorandum of decision denying the petitioner's claims of ineffective assistance of counsel. The habeas court subsequently denied the petition for certification to appeal. This appeal followed. Additional facts will be set forth as necessary.

         As an initial matter, we set forth the standard of review and the legal principles that guide our resolution of the petitioner's appeal. ‘‘In Simms v. Warden, 229 Conn. 178, 187, 640 A.2d 601 (1994), we concluded that [General Statutes] § 52-470 (b) prevents a reviewing court from hearing the merits of a habeas appeal following the denial of certification to appeal unless the petitioner establishes that the denial of certification constituted an abuse of discretion by the habeas court. In Simms v. Warden, 230 Conn. 608, 615-16, 646 A.2d 126 (1994), we incorporated the factors adopted by the United States Supreme Court in Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S.Ct. 860, 112 L.Ed.2d 956 (1991), as the appropriate standard for determining whether the habeas court abused its discretion in denying certification to appeal. This standard requires the petitioner to demonstrate 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. . . . A petitioner who establishes an abuse of discretion through one of the factors listed above must then demonstrate that the judgment of the habeas court should be reversed on its merits. . . . In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous.'' (Emphasis in original; internal quotation marks omitted.) Tutson v. Commissioner of Correction, 144 Conn.App. 203, 214-15, 72 A.3d 1162, cert. denied, 310 Conn. 928, 78 A.3d 145 (2013).

         ‘‘We examine the petitioner's underlying claim of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. Our standard of review of a habeas court's judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court 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.) Hankerson v. Commissioner of Correction, 150 Conn.App. 362, 367, 90 A.3d 368, cert. denied, 314 Conn. 919, 100 A.3d 852 (2014).

         With respect to the petitioner's substantive claims, ‘‘[i]t is well established that [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. . . . As enunciated in Strickland v. Washington, [466 U.S. 668');">466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)], this court has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel. . . . 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 second prong of Strickland, that his counsel's deficient performance prejudiced his defense, the petitioner must establish that, as a result of his trial counsel's deficient performance, there remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal. . . . The second prong is thus satisfied if the petitioner can demonstrate that there is a reasonable probability that, but for that ineffectiveness, the outcome would have been different. . . . An ineffective assistance of counsel claim will succeed only if both prongs [of Strickland] are satisfied. . . . The court, however, may decide against a petitioner on either prong, whichever is easier.'' (Citations omitted; internal quotation marks omitted.) Sanders v. Commissioner of Correction, 169 Conn.App. 813, 823, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904, 156 A.3d 536 (2017).

         The petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal because it improperly rejected his claims of ineffective assistance of counsel. Specifically, the petitioner claims that the court abused its discretion in denying the petition for certification to appeal because, in the first habeas proceeding, Toddy failed to raise claims that Zingaro rendered ineffective assistance in that he failed (1) to adequately advise and represent him during plea negotiations and in connection with his eventual guilty plea, (2) to file a motion for examination under a substance abuse diversionary program, [5] and (3) to request presentence confinement credit of three days.

         We turn to the merits of the petitioner's claims, recognizing that the claimed deficient performance regarding his first habeas counsel must fail if the claims of ineffective assistance of his trial counsel are without merit. ...


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