September 14, 2018
petition for a writ of habeas corpus, brought to the Superior
Court in the judicial district of Tolland and tried to the
court, Cobb, J.; judgment denying the petition; thereafter,
the court denied the petition for certification to appeal,
and the petitioner appealed to this court. Appeal dismissed.
Michael W. Brown, for the appellant (petitioner).
Mitchell S. Brody, senior assistant state's attorney,
with whom, on the brief, were Matthew C. Gedansky,
state's attorney, and Angela Macchiarulo, senior
assistant state's attorney, for the appellee
Lavine, Keller and Elgo, Js.
petitioner, Joseph Moore, 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. The petitioner claims that the habeas court
(1) abused its discretion in denying his petition for
certification to appeal and (2) improperly rejected his claim
that his trial counsel had rendered ineffective assistance.
We conclude that the court did not abuse its discretion in
denying the petition for certification to appeal, and,
accordingly, dismiss the petitioner's appeal.
following facts and procedural history are relevant to our
resolution of the petitioner's claims. Following a trial,
a jury found the petitioner guilty of robbery in the first
degree in violation of General Statutes § 53a-134 (a)
(4) and commission of a class B felony with a firearm in
violation of General Statutes § 53-202k. The petitioner
then pleaded guilty, in response to a part B information,
that the aforementioned offenses were committed while on
release in violation of General Statutes § 53a-40b. The
petitioner also pleaded guilty to a second part B information
charging him with being a persistent felony offender in
violation of General Statutes § 53a-40 (f). The trial
court sentenced the petitioner to a total effective term of
thirty-four years incarceration.
direct appeal from the petitioner's underlying
conviction, this court set forth the following facts that the
jury reasonably could have found. "At approximately 1
p.m. on July 13, 2009, the [petitioner] entered the New
Alliance Bank in Columbia wearing a white tank top and dark
sweatpants. Branch manager Penny Ritchie and tellers Maria
DePietro and Michelle LaLiberty, who were working at the bank
that day, observed the [petitioner] approach the check writer
station. The [petitioner] then asked another patron, David
Woodward, where the withdrawal slips were located, at which
point the [petitioner] took a slip from the station and began
to write on it. Photographs from the bank's security
cameras introduced into evidence depict the [petitioner]
writing on a piece of paper at the check writer station and
then approaching the teller station with the piece of paper
in his hand.
[petitioner] approached Ritchie and handed her a deposit slip
that read, '[g]ive cash. I have gun.' When Ritchie
explained that she was not a teller, the [petitioner] ordered
her to '[g]ive me the cash. Give it now.' Ritchie
then slid the deposit slip to DePietro, who unlocked her
teller drawer. As she did, the [petitioner] demanded,
'[h]urry up, hurry up' and reached over the counter.
DePietro then handed the [petitioner] $3500 in cash.
[petitioner] immediately exited the bank and Woodward
followed. As Ritchie locked the bank's doors and DiPietro
called 911, LaLiberty closed the bank's drive-through
window. As she did, she saw the [petitioner] walking at the
rear of the bank to a grassy strip between the drive-through
lane and an adjacent firehouse. LaLiberty wrote down a
description of the [petitioner] at that time. Approximately
six hours later, the Connecticut state police apprehended the
[petitioner] in a grassy area near Route 66 in Columbia. The
[petitioner] subsequently reviewed and executed a waiver of
Miranda rights form and agreed to speak with
Detective Derek Kasperowski. The [petitioner] then admitted
to robbing the bank and stated that he remembered
'smoking crack before going into the bank, going to the
bank teller and telling her to give him money.' Although
no firearm was found on the [petitioner's] person or the
surrounding area, the $3500 in cash was recovered."
(Internal quotation marks omitted.) State v.
Moore, 141 Conn.App. 814, 816-17, 64 A.3d 787, cert,
denied, 309 Conn. 908, 68 A.3d 663 (2013). This court
affirmed the petitioner's conviction. Id., 825.
16, 2014, the petitioner, as a self-represented party, filed
an application for a writ of habeas corpus. After obtaining
counsel, he filed an amended petition on April 28, 2016. He
alleged in relevant part that his constitutional right to
effective assistance of counsel was violated, arguing that
his "trial counsel's performance was deficient
because he failed to adequately counsel the petitioner about
the advisability of accepting the plea offer" and that
there was a "reasonable probability that-but for trial
counsel's deficient performance-the petitioner would have
accepted the plea offer and the court would have imposed a
more favorable sentence than the petitioner received."
habeas trial on September 15, 2016, the habeas court heard
testimony from Matthew Gedansky, the state's attorney in
the petitioner's criminal case, Douglas Ovian, the
petitioner's trial counsel, and the petitioner. In
particular, the petitioner testified that he admitted from
the beginning that he robbed the bank, but he believed that
he was only guilty of robbery in the third degree because he
only had handed the bank teller a note and never hurt
anyone. There was testimony that three plea offers
were made to the petitioner: an offer for ten years to serve
with five years of special parole; an offer for ten years to
serve with two years of special parole; and an offer made at
a judicial pretrial conference with Sullivan, J.,
offering the petitioner fifteen years to serve if he pleaded
guilty to one count of robbery in the first
degree. Ovian testified that his notes indicated
that he advised the petitioner to accept the offers and that
he would never have told the petitioner to take this case to
trial. In addition, Gedansky testified that he recalled Ovian
telling him that Ovian had advised the petitioner to take the
offer of ten years to serve with two years special parole.
The petitioner testified that he rejected these offers
because he had faith the state might present him with a more
favorable offer, and that he believed he deserved only five
years of ...