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Victor C. v. Commissioner of Correction

Court of Appeals of Connecticut

February 13, 2018


          Argued October 10, 2017

          Isaias Luis Pedraza, assigned counsel, for the appellant (petitioner).

          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 appellee (respondent).

          Lavine, Prescott and Bear, Js.


          LAVINE, J.

         The 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.

         The 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.

         The 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.

         The 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.[1] Id. The jury, however, found him guilty only of risk of injury to a child.[2] Id., 58. This court affirmed his conviction on direct appeal. Id., 75.

         The 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.

         We 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).

         In the 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 Conn.App. 70.

         ‘‘To 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).

         ‘‘A 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 ...

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