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Silver v. Commissioner of Correction

Court of Appeals of Connecticut

March 27, 2018

MARK SILVER
v.
COMMISSIONER OF CORRECTION

          Argued January 2, 2018

         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.

          Andrew P. O'Shea, for the appellant (petitioner).

          Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Emily Dewey Trudeau, deputy assistant state's attorney, for the appellee (respondent).

          Keller, Bright and Pellegrino, Js.

          OPINION

          BRIGHT, J.

         The petitioner, Mark Silver, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus, in which he alleged ineffective assistance on the part of his trial counsel in advising him concerning a possible plea deal. The dispositive issue is whether the habeas court abused its discretion in denying the petition for certification to appeal. We conclude that the habeas court properly denied certification, and we, therefore, dismiss the appeal.

         The following facts inform our review. ‘‘In a two count substitute information filed August 8, 2008, the state charged the [petitioner] . . . with attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), and assault in the first degree in violation of General Statutes § [53a-59 (a) (1)]. After a jury trial, the [petitioner] was found guilty on both counts and sentenced by the court to a total effective term of forty years incarceration.'' (Footnote omitted.) State v. Silver, 126 Conn.App. 522, 525, 12 A.3d 1014, cert. denied, 300 Conn. 931, 17 A.3d 68 (2011). The judgment of conviction was affirmed by this court on direct appeal. Id., 539.

         On December 21, 2015, the petitioner filed an amended petition for a writ of habeas corpus, alleging ineffective assistance of trial counsel, namely, Attorneys Barry Butler and William Schipul.[1] The petitioner alleged, in relevant part, that his trial counsel had ‘‘failed to adequately advise [him] regarding pursuing a plea agreement with the state . . . and . . . they failed to adequately pursue a plea bargain for [him].''[2] Following an April 26, 2016 trial on the merits of the petition, the habeas court denied the petition after concluding that the petitioner had failed to satisfy his burden of proof that counsel had provided ineffective assistance.

         Specifically, the habeas court credited the testimony of Attorneys Butler and Schipul, and found that their testimony was more credible than that of the petitioner. The court also found that there never was a formal plea offer from the state, but that the state only had agreed to bring a proposal to the victim's family for consideration if the petitioner approached the state with a proposal of a sentence of twenty years incarceration; the petitioner, however, refused to consider such a sentence. The court further found that even if it were to assume that the state had made a formal offer of twenty years incarceration, it was clear that Butler and Schipul had complied with their constitutional duties to advise and explain the offer to the petitioner and that the petitioner had made the decision not to entertain such an offer. The court, therefore, denied the petition for a writ of habeas corpus. Thereafter, the petitioner filed a petition for certification to appeal from the habeas court's judgment. The court denied the petition for certification to appeal on May 10, 2016. The petitioner now appeals from the judgment denying his petition for certification to appeal. Additional facts will be set forth as necessary.

         ‘‘Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, [the petitioner] must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the merits. . . . To prove that the denial of his petition for certification to appeal constituted an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] 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. . . .

         ‘‘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. In other words, we review the petitioner's substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria . . . adopted by [our Supreme Court] for determining the propriety of the habeas court's denial of the petition for certification.'' (Citations omitted; internal quotation marks omitted.) Sanders v. Commissioner of Correction, 169 Conn.App. 813, 821-22, 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 there is merit to his underlying claim that trial counsel provided ineffective assistance by failing to provide ...


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