September 14, 2017
Stephen A. Lebedevitch, for the appellant (petitioner).
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).
SHELDON, ELGO AND MIHALAKOS, JS.
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:
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.
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.
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.
petitioner, Carmine Kellman, also known as Carmi Kellman,
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
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). 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.
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.,
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.
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.
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. 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.''
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.
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).
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).
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).
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.
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, ...