October 10, 2017
Luis Pedraza, assigned counsel, for the appellant
Timothy J. Sugrue, assistant state's attorney, with whom,
on the brief, were John C. Smriga, state's attorney, and
Emily D. Trudeau, assistant state's attorney, for the
Lavine, Prescott and Bear, Js.
petitioner, Victor C., 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
habeas court improperly found that his trial counsel did not
render ineffective assistance by (1) failing to present
testimony from certain fact witnesses, (2) improperly
advising him of his right to testify at trial, and (3)
failing to consult and present testimony from an expert in
the field of child sexual abuse. We affirm the judgment of
the habeas court.
petitioner was convicted of risk of injury to a child in
violation of General Statutes § 53-21 (a) (2) and was
sentenced to twenty years of incarceration, execution
suspended after fifteen years, and ten years of probation.
State v. Victor C., 145 Conn.App. 54, 58,
75 A.3d 48, cert. denied, 310 Conn. 933, 78 A.3d 859 (2013).
The facts underlying the petitioner's conviction were set
out by this court in his direct appeal. See id.
petitioner is the victim's stepfather. Id., 56.
In 2009, the victim was thirteen years old and living in a
house with her grandparents, uncle, one or two younger
siblings, and the petitioner. Id. Her mother, who
was receiving drug treatment, was not living in the house.
Id. One night, the petitioner entered the
victim's bedroom. Id. After removing the
victim's clothing, the petitioner rubbed his erect penis
on her breasts and vagina. The victim did not stop the
petitioner because she was scared. Id. The victim
informed her mother and her uncle's girlfriend of the
incident. Id., 56-57. At about the same time, the
victim's special education teacher noticed a change in
the victim's demeanor and confronted the victim.
Id., 57. The victim disclosed the incident to her
teacher, who was a mandated reporter of suspected child
abuse. Id. The teacher took the victim to the school
social worker, and the Department of Children and Families
(department) was contacted. Id.
victim was later interviewed by members of the department
and, thereafter, interviewed and physically examined by a
nurse practitioner at the child sexual abuse clinic at
Yale-New Haven Hospital. Id. The petitioner
subsequently was arrested and charged with multiple
crimes. Id. The jury, however, found him
guilty only of risk of injury to a child. Id., 58.
This court affirmed his conviction on direct appeal.
petitioner, who was then self-represented, filed an
application for a writ of habeas corpus on October 18, 2012.
On October 1, 2014, following the appointment of counsel, the
petitioner filed an amended petition for a writ of habeas
corpus in which he alleged that he was denied the effective
assistance of counsel because counsel failed to call certain
witnesses, failed adequately to cross-examine witnesses,
failed to advise him of his right to testify and did not
permit him to testify, and failed to consult and present
testimony from an expert knowledgeable about the effects of
sexual assault on child victims. Following trial, the habeas
court found that the petitioner's trial counsel did not
render ineffective assistance by failing to call certain
witnesses and that his cross-examination of the state's
witnesses was not deficient. Although counsel advised the
petitioner not to testify, the habeas court concluded that
the petitioner made the ultimate decision not to testify and
was not prejudiced by his counsel's advice. The habeas
court denied the petition for a writ of habeas corpus but
granted the petitioner certification to appeal.
first set out our standard of review. ‘‘The
standard of appellate review of habeas corpus proceedings is
well settled. The underlying historical facts found by the
habeas court may not be disturbed unless the findings were
clearly erroneous. . . . Historical facts constitute a
recital of external events and the credibility of their
narrators. . . . [M]ixed questions of fact and law, which
require the application of a legal standard to the
historical-fact determinations, are not facts in this sense.
. . . Whether the representation a defendant received at
trial was constitutionally inadequate is a mixed question of
law and fact. . . . As such, that question requires plenary
review by [an appellate] court unfettered by the clearly
erroneous standard.'' (Internal quotation marks
omitted.) Jarrett v. Commissioner of
Correction, 108 Conn.App. 59, 69-70, 947 A.2d 395, cert.
denied, 288 Conn. 910, 953 A.2d 653 (2008).
present case, the petitioner claims that he was denied his
constitutional right to the effective assistance of his trial
counsel. ‘‘To determine whether the petitioner
has demonstrated that counsel's performance was
ineffective, we apply the two part test established in
Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). Claims of ineffective
assistance during a criminal proceeding must be supported by
evidence establishing that (1) counsel's representation
fell below an objective standard of reasonableness,
and (2) counsel's deficient performance
prejudiced the defense because there was a reasonable
probability that the outcome of the proceedings would have
been different had it not been for the deficient performance.
. . . The first prong requires a showing that counsel made
errors so serious that counsel was not functioning as the
counsel guaranteed the defendant by the [s]ixth
[a]mendment.'' (Emphasis in original; internal
quotation marks omitted.) Jarrett v.
Commissioner of Correction, supra, 108
satisfy the second prong of Strickland, that is
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. . . . In order to
prevail, a petitioner must prevail on both
Strickland prongs. . . . Put another way, [i]t is
axiomatic that courts may decide against a petitioner on
either prong, whichever is easier.'' (Citations
omitted; internal quotation marks omitted.) Gooden
v. Commissioner of Correction, 169 Conn.App.
333, 341, 150 A.3d 738 (2016).
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 [petitioner] must overcome the presumption that,
under the circumstances, the challenged action might be
considered sound trial ...