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King v. Commissioner of Correction

Court of Appeals of Connecticut

September 24, 2019


          Argued January 2, 2019

         Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland and tried to the court, Oliver, J.; judgment denying the petition in part and dismissing the petition in part, from which the petitioner, on the granting of certification, appealed to this court. Affirmed.

          Randall Bowers, with whom, on the brief, was Walter C. Bansley IV, for the appellant (petitioner).

          James M. Ralls, assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and Eva Lenczewski, senior assistant state’s attorney, for the appellee (respondent).

          DiPentima, C. J., and Alvord and Beach, Js.


          BEACH, J.

         The petitioner, Robert King, appeals from the judgment of the habeas court denying in part and dismissing in part his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly (1) concluded that the petitioner failed to establish that he had received ineffective assistance from his trial counsel, and (2) dismissed the petitioner’s claims that his right to due process was violated by the trial court’s not stating on the record its refusal to accept the petitioner’s pretrial plea agreement.[1] We affirm the judgment of the habeas court.

         The following facts and procedural history are relevant to our decision. Following a jury trial, the petitioner was convicted of two counts of assault in the first degree in violation of subdivisions (1) and (3) of General Statutes § 53a-59 (a).[2] During pretrial proceedings and at trial, the petitioner was represented by Attorney Donald O’Brien.

         The petitioner appealed to this court, which reversed his conviction and remanded the case for a new trial. State v. King, 149 Conn.App. 361, 376, 87 A.3d 1193 (2014), rev’d, 321 Conn. 135, 136 A.3d 1210 (2016). Our Supreme Court reversed this court’s judgment and remanded the case to this court with direction to affirm the trial court’s judgment. State v. King, 321 Conn. 135, 158, 136 A.3d 1210 (2016). The petitioner commenced this habeas action, and, after a trial, the habeas court denied in part and dismissed in part his amended habeas petition. The habeas court thereafter granted the petitioner’s petition for certification to appeal, and the petitioner appealed to this court.

         In its decision on the direct appeal, our Supreme Court recited the following relevant facts, which the jury reasonably could have found. "On December 18, 2010, Kyle Neri and Angela Papp went to visit the victim, Kristen Severino, at her residence in Waterbury. Neri and Papp had spent the day getting high on crack cocaine and continued to do so with the victim once they arrived at her residence. While the three were sitting in the victim’s apartment, the [petitioner] entered and began to argue with Neri over an unpaid $10 loan that Neri owed the [petitioner]. As the argument between Neri and the [petitioner] continued to escalate, the [petitioner] went to the apartment’s kitchen and returned, brandishing a steak knife. The [petitioner] began waving the knife around and shouting at Neri and Papp as Neri attempted to physically wrest the knife from the [petitioner’s] control.

         "The victim then intervened in the altercation by attempting to persuade the [petitioner] that Neri should not die over a $10 debt. When her verbal entreaties proved unsuccessful, the victim attempted to physically separate the combatants as the [petitioner] continued to swing the knife at Neri. The [petitioner] then threw the victim against a wall and waved the knife in front of her face. The victim attempted to move and the [petitioner] rapidly stabbed her several times; he then fled the scene." Id., 138–39. Additional facts and procedural history will be set forth as necessary.


         The petitioner claims that the habeas court improperly concluded that his trial counsel did not render ineffective assistance. He claims that trial counsel’s performance was deficient because he did not cause the charges to be more clearly distinguished from each other, object to the admission of a written summary of the petitioner’s account of the incident, and insist that the trial court state on the record its rejection of the plea agreement.[3] We disagree.

         "[T]he underlying historical facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony. . . . The application of historical facts to questions of law that is necessary to determine whether the petitioner has demonstrated prejudice under Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)], however, is a mixed question of law and fact subject to our plenary review." (Citation omitted; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 716–17, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).

         "As enunciated in Strickland v. Washington, [supra, 486 U.S. 687] . . . [i]t is axiomatic that the right to counsel is the right to the effective assistance of counsel. . . . A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. . . . To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . The claim will succeed only if both prongs are satisfied." (Internal quotation marks omitted.) Bryant v. Commissioner of Correction, 290 Conn. 502, 510, 964 A.2d 1186, cert. denied sub nom. Murphy v. Bryant, 558 U.S. 938, 130 S.Ct. 259, 175 L.Ed.2d 242 (2009).

         "[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 strategy. . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Goodrum v. Commissioner of Correction, 63 Conn.App. 297, 300–301, 776 A.2d 461, cert. denied, 258 Conn. 902, 782 A.2d 136 (2001).


         The petitioner claims that his trial counsel provided ineffective assistance by not objecting to the jury instructions or requesting an additional jury instruction regarding the difference between the intent elements of the two assault charges of which he was convicted, and that he was prejudiced thereby. He contends that he was "improperly convicted under two conflicting theories of guilt, despite both theories being presented in an ‘either/or’ manner."[4] We are not persuaded.

         Section 53a-59 (a) (1) requires an "intent to cause serious physical injury to another person, " and § 53a-59 (a) (3) requires that "under circumstances evincing an extreme indifference to human life [the defendant] recklessly engages in conduct which creates a risk of death to another person . . . ." "Convictions are legally inconsistent when a conviction of one offense requires a finding that negates an essential element of another offense of which the defendant has also been convicted. . . . In examining a claim of legal inconsistency, we must closely examine the record to determine whether there is any plausible theory under which the jury reasonably could have found the defendant guilty of both offenses. . . . Additionally, in determining whether two mental states are mutually exclusive, the court must consider each mental state as it relates to the particular result described by the statute." (Citations omitted; internal quotation marks omitted.) State v. King, supra, 321 Conn. 140–41.

         In the course of its decision in the direct appeal, our Supreme Court addressed the issue of whether the verdicts were legally inconsistent in the context of the facts of this case: "At [the petitioner’s criminal trial], the jury heard two accounts of the assault. First, the [petitioner’s] written statement, provided to a detective and introduced into evidence by the state without objection from the defense, described the stabbing as an accident that occurred when he was swinging the knife at Neri and the victim attempted to physically separate the combatants. In the [petitioner’s] account, he and Neri ‘got into a tussle. [Neri] was trying to take the knife from me. I know it was getting rough. That was when [the victim] got into the middle of us. She was trying to break us up.’ While the victim was in between the [petitioner] and Neri, the [petitioner] began ‘swinging the knife at [Neri]. In the middle of that, [the victim] started screaming . . . . That’s when I realized she was hurt. At first, I ain’t know what was wrong, but then I thought about it. That’s when I knew that I had stabbed her.’ Thus, if the jury credited the [petitioner’s] statement, it could have found that [his] act of swinging a knife at Neri in close ...

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