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Kellman v. Commissioner of Correction

Court of Appeals of Connecticut

November 14, 2017


          Argued September 14, 2017

          Stephen A. Lebedevitch, for the appellant (petitioner).

          Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Adrienne Russo, deputy assistant state's attorney, for the appellee (respondent).



         The petitioner, who previously had been convicted of, inter alia, murder in connection with the shooting death of the victim, sought a writ of habeas corpus, claiming that his trial counsel, S, had provided ineffective assistance. The habeas court rendered judgment denying the habeas petition, concluding that the petitioner had failed to prove that he was denied the effective assistance of trial counsel. Thereafter, on the granting of certification, the petitioner appealed to this court. Held:

         1. The petitioner could not prevail on his claim that S provided ineffective assistance by failing to meaningfully present and explain a pretrial plea offer from the state; the habeas court's finding that the petitioner failed to demonstrate that he was prejudiced by his counsel's allegedly deficient performance during pretrial plea negotiations was not clearly erroneous, as the habeas court did not find credible the petitioner's testimony regarding whether a plea deal was presented or meaningfully explained to him, and the petitioner failed to establish that it was reasonably probable that he would have accepted the plea offer.

         2. The habeas court did not err in determining that the petitioner failed to establish his claim that S was ineffective by employing a deficient trial strategy that pursued an extreme emotional disturbance defense at trial, without consulting with an expert on that defense prior to trial: that court's finding that S's decision not to retain an expert witness in pursuing the extreme emotional disturbance defense was a reasonable strategic decision was not clearly erroneous and was supported by the evidence and testimony at the habeas trial, including S's testimony that he believed that it was not prudent to call an expert witness on that defense when the petitioner and lay witnesses could testify to the same evidence, that he was concerned that the jury would have looked unfavorably on an expert who was paid to testify on the petitioner's behalf, and that it was the only defense he had given the strength of the evidence against the petitioner; moreover, even if S was deficient in his performance by failing to consult with an expert on the extreme emotional disturbance defense, the petitioner did not show that S's allegedly deficient performance prejudiced him, as there was substantial evidence in the record that supported the jury's guilty verdict, and, although the petitioner speculated that the result might have been different had S chosen to utilize an expert witness, the petitioner failed to demonstrate that there was a reasonable probability that if S had consulted with or called an expert witness during the criminal trial, the jury would have had reasonable doubt as to the petitioner's guilt.

         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, Oliver, J.; judgment denying the petition, from which the petitioner, on the granting of certification, appealed to this court. Affirmed.


          MIHALAKOS, J.

         The petitioner, Carmine Kellman, also known as Carmi Kellman, [1] appeals following the habeas court's granting of his petition for certification to appeal from its judgment denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly rejected his claims of ineffective assistance of trial counsel. Specifically, he asserts that his trial counsel, Richard Silverstein, rendered ineffective assistance because he (1) failed to meaningfully present and explain the state's pretrial plea offers and (2) failed to consult with or present an expert at the petitioner's trial regarding the extreme emotional disturbance defense. For the reasons set forth herein, we affirm the judgment of the habeas court.

         The following facts and procedural history are relevant to our disposition of the petitioner's claims. After a jury trial, the petitioner was convicted of murder in the first degree in violation of General Statutes § 53a-54a, carrying a pistol without a permit in violation of General Statutes § 29-35, and criminal violation of a protective order in violation of General Statutes (Rev. to 1993) § 53a-110b (a) (now § 53a-223).[2] The petitioner was sentenced to sixty years of incarceration for murder, one year concurrent for carrying a pistol without a permit, and one year concurrent for criminal violation of a protective order.

         The petitioner's conviction was the subject of a direct appeal before this court. See State v. Kellman, 56 Conn.App. 279, 742 A.2d 423, cert. denied, 252 Conn. 939, 747 A.2d 4 (2000). In affirming the petitioner's conviction, this court concluded that the jury reasonably could have found the following facts. The petitioner and the victim, Carmen Smith, began a two year romantic relationship in 1992, which was marked by repeated domestic incidents, breakups, and reconciliations. Id., 280. Numerous complaints were lodged with the police by the victim about the petitioner. Id. In July, 1993, after an arrest based on such a complaint, the petitioner was ordered by the victim to move out of her residence. Id. The petitioner returned during a brief period of reconciliation, but was dispossessed permanently by the victim later that year. Id., 280-81.

         As the petitioner continued to pursue the relationship, his behavior became more hostile, and the domestic incidents increased in severity. Id., 281. In February, 1994, the petitioner was arrested outside the victim's residence after being pursued by the police. Id. Thereafter, the victim obtained a protective order that prohibited the petitioner from entering her home and from restraining, harassing or contacting her. Id. The petitioner, however, continued to harass the victim on many occasions. Id. On Saturday, March 12, 1994, the victim and her sister went shopping, had dinner and went to a club for the evening. Id. At approximately 2 a.m., on March 13, 1994, they returned to the victim's house, where the petitioner was waiting in the driveway. Id. As the petitioner approached the two women, he pulled out a gun, chased the victim down a walkway alongside the building, and shot her five times, causing her death. Id.

         The following day, the petitioner admitted to a friend that he had been involved in the shooting that led to the victim's death. Id., 282. After his arrest, he claimed that the shooting was an unintended mistake. Id. At his criminal trial, the petitioner claimed that he was suffering from extreme emotional disturbance and that he was intoxicated when he shot the victim. Id.

         Following his conviction, the petitioner, on May 15, 2013, filed a pro se petition for a writ of habeas corpus, alleging that his trial attorney, Silverstein, provided ineffective assistance of counsel. Specifically, the petitioner alleged that Silverstein advised him to reject a thirty year plea agreement because he could win the case at trial. On the basis of this advice, he rejected the state's offer, went to trial, and was convicted. On June 18, 2015, the petitioner, represented by appointed counsel, filed an amended petition, in which he alleged that he was denied his constitutional right to the effective assistance of counsel as a result of Silverstein's (1) deficient performance in plea negotiations and (2) failure to consult with an expert on the extreme emotional disturbance defense.[3] The petitioner first claimed that: ‘‘(a) [Silverstein] failed to inform the petitioner that the state made a pretrial offer in an attempt to resolve the case; (b) [Silverstein] failed to meaningfully and adequately advise the petitioner with respect to the state's pretrial offer; (c) [Silverstein] rejected the state's pretrial offer without the authorization or consent of the petitioner; and/or (d) assuming [Silverstein] did relay the offer to the petitioner, he advised the petitioner to reject the offer and proceed to trial.'' The petitioner claimed that but for his counsel's deficient performance relating to the plea offers, ‘‘there is a reasonable probability that . . . the results of the proceedings would have been more favorable to [him] in that [he] would have accepted the state's offer, and the trial court would have imposed the sentence pursuant to the offer.'' Second, the petitioner claimed that Silverstein pursued an unreasonable legal strategy in presenting the extreme emotional disturbance affirmative defense, more particularly, by ‘‘fail[ing] to obtain the opinion of an expert or get the [petitioner] evaluated by an expert, '' and that this ‘‘unreasonable legal strategy prejudiced the petitioner.''

         The habeas trial was held on November 18, 2015, and March 2, 2016. The petitioner presented testimony from Silverstein, the prosecutor in the petitioner's criminal trial, Attorney James Dinnan, and the petitioner's expert in criminal defense, Attorney J. Patten Brown. The petitioner also testified. On June 21, 2016, the habeas court, Oliver, J., issued a written memorandum of decision denying the petition for a writ of habeas corpus, finding that the petitioner had failed to prove that he was denied the effective assistance of trial counsel under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The habeas court granted the petition for certification to appeal. This appeal followed. Additional facts and procedural history will be introduced as necessary.

         We first set forth the standard of review and legal principles applicable to the petitioner's appeal. ‘‘Our standard of review of a habeas court's judgment on ineffective assistance of counsel claims is well settled. The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . The application of the habeas court's factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review. . . . Therefore, 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.'' (Citation omitted; internal quotation marks omitted.) Sanders v. Commissioner of Correction, 169 Conn.App. 813, 822, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904, 156 A.3d 536 (2017).

         It 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. . . . It is axiomatic that the right to counsel is the right to the effective assistance of counsel.'' (Internal quotation marks omitted.) Horn v. Commissioner of Correction, 321 Conn. 767, 775, 138 A.3d 908 (2016).

         ‘‘A claim of ineffective assistance of counsel as enunciated in Strickland v. Washington, supra, 466 U.S. 668, 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.'' (Internal quotation marks omitted.) Griffin v. Commissioner of Correction, 137 Conn.App. 382, 387, 47 A.3d 956, cert. denied, 307 Conn. 921, 54 A.3d 182 (2012). ‘‘Our Supreme Court has stated that the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances, and that [j]udicial scrutiny of counsel's performance must be highly deferential.'' (Internal quotation marks omitted.) Id., quoting Ham v. Commissioner of Correction, 301 Conn. 697, 706, 23 A.3d 682 (2011).

         ‘‘An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. . . . 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.'' (Internal quotation marks omitted.) Horn v. Commissioner of Correction, supra, 321 Conn. 776. ‘‘In making this determination, a court hearing an ineffectiveness claim [based on counsel's failure to investigate] must consider the totality of the evidence before the judge or the jury. . . . Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.'' (Internal quotation marks omitted.) Id., quoting Strickland v. Washington, supra, 466 U.S. 695-96.

         A petitioner's claim will ‘‘succeed only if both prongs are satisfied. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unworkable.'' (Citation omitted; internal quotation marks omitted.) Boyd v.Commissioner of Correction, 130 Conn.App. 291, 295, 21 A.3d 969, cert. denied, 302 Conn. 926, 28 A.3d 337 (2011). ‘‘A court can find against a petitioner, with respect to a claim of ineffective assistance of counsel, ...

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