January 2, 2018
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.
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
Keller, Bright and Pellegrino, Js.
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.
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.
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. 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].'' 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.
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.
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. . . .
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).
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