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Grover v. Commissioner of Correction

Court of Appeals of Connecticut

July 31, 2018

JOHN GROVER
v.
COMMISSIONER OF CORRECTION

          Argued April 17, 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, Fuger, J., denied the petition for certification to appeal, and the petitioner appealed to this court; subsequently, the court, Bright, J., denied the petitioner's motion for articulation; thereafter, the court, Bright, J., granted in part the petitioner's motion for rectification; subsequently, the court, Kwak, J., denied the petitioner's motion for order. Appeal dismissed.

          Damon A. R. Kirschbaum, with whom, on the brief, was Vishal K. Garg, for the appellant (petitioner).

          Bruce R. Lockwood, senior assistant state's attorney, with whom, on the brief, were Anne Mahoney, state's attorney, and Jo Anne Sulik, supervisory assistant state's attorney, for the appellee (respondent).

          DiPentima, C. J., and Keller and Prescott, Js.

          OPINION

          DiPENTIMA, C. J.

         The petitioner, John Grover, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court (1) abused its discretion in denying his petition for certification to appeal and (2) erroneously determined that he was not denied his constitutional rights to counsel free from conflicts of interest and to the effective assistance of counsel.[1]

         The record reveals the following relevant facts and procedural history. On October 25, 2013, the petitioner entered a plea of guilty under the Alford doctrine[2] to one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (2), and, on January 7, 2014, the court sentenced him to seven years imprisonment followed by ten years special parole; he also was required to register as a sex offender for ten years. At the petitioner's plea hearing, the prosecutor recited the following narrative.

         In February 2011, the petitioner was in a relationship with the victim's mother and lived with her and the female victim in Scotland, Connecticut. At that time, the victim was ten years old.

         ‘‘On [February 15, 2011] the victim went to school at Scotland Elementary School and she made a disclosure [that the petitioner] had touched her private areas and [had] also used lotion [on her]. Subsequently, the victim was interviewed the following day at a child-friendly location forensically.

         ‘‘During that interview the victim disclosed [that the petitioner] and herself were alone in the master bedroom of the residence. The [petitioner] pulled down the pants of the victim and lifted up her shirt and began rubbing lotion on her stomach and on her legs to include also her inner thighs and also her vaginal area.

         ‘‘At some point the [petitioner] took a vibrator that he had in his dresser and then also used that to have contact with [the victim's] intimate parts . . . . An investigation was conducted and ultimately an arrest warrant was applied for and granted charging [the petitioner] with the crime of risk of injury [to a child] and sexual assault in the first degree.''

         On April 6, 2011, the petitioner was arraigned and bond was set at $75, 000 cash or surety; the petitioner posted bond the same day. The petitioner originally was charged with sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and risk of injury to a child in violation of § 53-21 (a) (2).[3]

         Prior to his arrest, the petitioner hired Attorney Jerome Paun to represent him during the criminal investigation. Following his arrest, the petitioner and Paun entered into a fee agreement for the purposes of pretrial representation. The agreement provided for a fixed fee of $7500 and covered all work leading up to trial. Under the terms of this same agreement, once the case was placed on the trial list, Paun was to be paid $250 an hour with a $5000 retainer to be paid in full within thirty days of the case being placed on the trial list. The petitioner was employed when he hired Paun and was able to pay the $7500 pretrial fee and to post bond for his release. While the petitioner did not pay the trial retainer in full, Paun estimated that he was able to pay $2000 of the $5000 owed.

         After jury selection, but before trial, the petitioner reached a plea agreement with the prosecutor pursuant to which he pleaded guilty to one count of risk of injury to a child in violation of § 53-21 (a) (2). He was sentenced on January 7, 2014.

         On March 4, 2015, the petitioner filed an amended petition for writ of habeas corpus. Relevant to this appeal, the petitioner alleged that he was denied his constitutional right to counsel free from conflicts of interest because Paun had an actual conflict with respect to his representation of the petitioner. Specifically, he argued that Paun had a financial incentive to convince the petitioner to accept a plea rather than proceed to trial due to the fact that the petitioner was unable to pay Paun's trial retainer in full. The petitioner additionally claimed that he was denied his constitutional right to effective assistance of counsel because Paun failed (1) to retain or request funding from the trial court in order to retain a forensic mental health professional with expertise in investigating and assessing child sexual abuse allegations and (2) to identify innocent alternative explanations for the allegations against the petitioner.

         The petitioner's habeas trial was held on two separate dates in October and December, 2015. At trial, the petitioner presented evidence from Dr. Nancy Eiswirth, an expert witness in forensic psychology, and Attorney Michael Sheehan, who testified as a legal expert in the area of criminal defense. Eiswirth testified that she had reviewed the victim's forensic interview and had identified several issues with respect to the manner in which it had been conducted. Specifically, Eiswirth opined that the interview was not tailored properly to accommodate the victim's age andmental development; she also was critical of the interviewer's failure to rectify contradictions and ambiguities in the victim's statement. Following this testimony, Sheehan testified that based on his experience, if it seemed likely that the forensic ...


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