Anderson v. Commissioner of Correction ( 2021 )

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FRANCIS ANDERSON v. COMMISSIONER
OF CORRECTION
(AC 42032)
Alvord, Elgo and Cradle, Js.
Syllabus
The petitioner, who had been convicted of assault of a peace officer while
incarcerated, sought a writ of habeas corpus, claiming that his trial
counsel had rendered ineffective assistance by failing to adequately
investigate his case, failing to explain to him the strengths and weak-
nesses of his case and failing to meaningfully explain the plea offers
made to him and the likely range of sentences that he faced. The habeas
court rendered judgment denying the petition, concluding, inter alia, that
the petitioner had failed to prove that his trial counsel’s representation
of him was deficient or that he was prejudiced by this alleged deficiency.
Thereafter, the habeas court granted the petition for certification to
appeal, and the petitioner appealed to this court. On appeal, the peti-
tioner claimed that the habeas court incorrectly concluded that his trial
counsel did not provide ineffective assistance by failing to pursue a
defense of lack of capacity due to mental disease or defect. Held that
the judgment of the habeas court denying the petition for a writ of habeas
corpus was affirmed; the habeas court having thoroughly addressed the
petitioner’s argument raised in this appeal, this court adopted the habeas
court’s well reasoned decision as a proper statement of the relevant
facts, issues and the applicable law on those issues.
Argued February 9—officially released June 8, 2021
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, Farley, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
James P. Sexton, assigned counsel, with whom, on
the brief, were Megan L. Wade and Meryl R. Gersz,
assigned counsel, for the appellant (petitioner).
Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, were Matthew C. Gedansky,
state’s attorney, and Jaclyn Preville Delude, supervi-
sory assistant state’s attorney, for the appellee (respon-
dent).
Opinion
CRADLE, J. The petitioner, Francis Anderson,
appeals 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 incorrectly
concluded that his trial counsel did not provide ineffec-
tive assistance by failing to pursue a defense of lack
of capacity due to mental disease or defect (lack of
capacity). We affirm the judgment of the habeas court.1
On March 3, 2011, the petitioner pleaded guilty to
two counts of assault of a peace officer in violation of
General Statutes (Rev. to 2009) § 53a-167c. The petition-
er’s conviction resulted from events that transpired on
September 30, 2009, when the petitioner, while serving
a prior sentence, assaulted two officers from the
Department of Correction. The trial court, Hon. Terence
A. Sullivan, judge trial referee, sentenced the petitioner
to a total effective sentence of five years of incarcera-
tion, to be served consecutively to any previous sen-
tence he already was serving.
On February 19, 2013, the petitioner filed an amended
petition for a writ of habeas corpus.2 In his amended
petition, the petitioner claimed that his trial counsel,
Douglas Ovian, provided ineffective assistance by fail-
ing to adequately investigate his case, failing to explain
to him the strengths and weaknesses of his case and
failing to meaningfully explain the plea offers made to
him and the likely range of sentences that he faced.
On July 25, 2018, following a three day trial and the
filing of posttrial briefs by the parties, the habeas court,
Farley, J., issued a memorandum of decision in which
it concluded that the petitioner failed to prove that
Ovian’s representation of him was deficient or that he
was prejudiced by this alleged deficiency. In so conclud-
ing, the habeas court began by noting that ‘‘[t]he peti-
tioner’s case, as presented at trial and in his posttrial
brief, focuses specifically upon his attorney’s failure to
adequately explore and explain a potential defense of
lack of capacity, as an alternative to his guilty pleas,
and to otherwise provide an effective defense based on
the petitioner’s mental health issues.’’ The court then
set forth the following relevant facts. ‘‘[The petitioner]
has a long history of violent behavior and mental illness.
In the underlying case, [the petitioner] was charged
with assaulting two correctional officers when they
entered his cell immediately after having, in [the peti-
tioner’s] opinion, mistreated another inmate with men-
tal illness. This was not the first such occasion. [The
petitioner] has a long history of assaults against correc-
tional officers and others. His psychological issues and
behavioral problems date back to his childhood and he
has been in and out of correctional facilities since his
youth. The incident underlying the conviction that is the
subject of this habeas petition occurred in September,
2009, at Northern Correctional Institution. [The peti-
tioner] was charged with two counts of assault [of a
peace officer] in violation of General Statutes (Rev. to
2009) § 53a-167c, class C felonies, as well as an infrac-
tion for failure to comply with fingerprinting [require-
ments] in violation of General Statutes § 29-17. The
felony counts exposed him to up to twenty years of
incarceration and any sentence was required by statute
to run consecutively to the sentence he was serving at
the time. Subsequently, accounting for his prior history,
the state filed [a] part B [information] charging [the
petitioner] as a persistent felony offender in violation
of General Statutes § 53a-40 (g) and as a persistent
serious felony offender in violation of General Statutes
§ 53a-40 (c). These additional charges increased [the
petitioner’s] exposure to up to forty years of incarcera-
tion. On March 3, 2011, after a jury had been selected,
[the petitioner] pleaded guilty to the two assault counts
under an open plea, the state having agreed to drop the
part B counts in exchange for the guilty plea. Thus, at
sentencing [the petitioner] faced a total exposure of
twenty years. He was sentenced to five years to serve
on each of the two counts, to run concurrently with
each other and consecutive to the sentence he was then
serving. . . .
‘‘Following [the petitioner’s] arraignment on the origi-
nal charges . . . Ovian was assigned to represent him.
At the time . . . Ovian had over twenty years of experi-
ence with the Division of Public Defender Services and
had served as a public defender in the Tolland judicial
district for over three years. [The petitioner] made
numerous appearances in court prior to trial. . . .
Ovian met with [the petitioner] on these occasions and
had the opportunity to explore at length with him the
underlying events and his criminal and psychological
history. . . . Ovian directed his staff to compile a
record of [the petitioner’s] mental health history and
treatment and to prepare a summary of that history, as
well as [the petitioner’s] criminal history. Extensive
records were obtained, dating back to a psychological
evaluation performed by . . . Donald Grayson in 2000,
which in turn reviewed [the petitioner’s] prior records.
It is not clear, however, that . . . Ovian had the
entirety of [the petitioner’s] mental health records, in
particular a 1982 report from Riverview School pre-
pared when [the petitioner] was twelve years old,
records from a prior commitment to [what is now]
Whiting Forensic [Hospital (Whiting)] in 2005, and some
community treatment in 2007. The summary prepared
for . . . Ovian, however, does reference the 2005
admission to Whiting, as well as [the petitioner’s] child-
hood history.
‘‘Over the course of the pretrial proceedings in the
case . . . Ovian regularly discussed [the petitioner’s]
mental health issues with him and how those issues
might relate to a defense strategy in the case. These
discussions included a ‘colloquial’ discussion of a poten-
tial lack of capacity defense. By ‘colloquial’ . . . Ovian
means a discussion in layman’s terms, as distinguished
from a technical, legal discussion. The petitioner makes
much of the fact that . . . Ovian does not have written
notes concerning the discussion of a lack of capacity
defense with him. . . . Ovian, however, freely
acknowledged areas of his recollection that were
unclear and deferred to [the petitioner’s] recollection
on occasion. He was very clear in recalling that he
did address the subject of a potential lack of capacity
defense with [the petitioner] and the court credits his
testimony on that point despite [the petitioner’s] contra-
dictory testimony. It is [the petitioner’s] testimony the
court finds is not credible. According to [the petitioner]
. . . Ovian never discussed the following subjects with
him: the facts of the case; the strengths and weaknesses
of the case; the minimum and maximum penalties he
faced; a plea offer from the state of eighteen months
to serve; the option of a court trial rather than a jury
trial; and a potential lack of capacity defense. [The
petitioner] does acknowledge that he discussed his
mental health issues with . . . Ovian, but he maintains
that . . . Ovian ignored those issues. The court does
not find [the petitioner’s] testimony concerning how
. . . Ovian conducted the defense and the nature of
his dealings with . . . Ovian to be credible.
‘‘Following his initial meetings with [the petitioner]
and the review of his mental health history . . . Ovian
was of the view that a lack of capacity defense was not
a viable option for [the petitioner]. The history reflected
diagnoses of post-traumatic stress disorder [PTSD], per-
sonality disorder, borderline intellectual functioning
and substance abuse. Despite the extensive mental
health history, however, it was . . . Ovian’s view that
the facts did not support a claim that [the petitioner]
lacked the capacity either to appreciate the wrong-
fulness of his conduct or to control his conduct within
the requirements of the law. In addition to his assess-
ment that a lack of capacity defense was not viable
. . . Ovian also considered the pursuit of that defense
as strategically unsound because it would potentially
expose [the petitioner] to a period of confinement sig-
nificantly longer than what could be negotiated in a
plea agreement with the state. . . . Ovian raised the
subject of [the petitioner’s] extensive mental health his-
tory with the state in plea negotiations. At one point
. . . Ovian obtained a plea offer from the state that
would have resulted in an agreed upon sentence of
eighteen months to serve. [The petitioner], however,
rejected that offer.
‘‘[Ovian] discussed the merits of a lack of capacity
defense, in addition to the strategic disadvantages of
pursuing that defense, with [the petitioner]. He also
checked his own opinion of the merits of such a defense
by obtaining an expert opinion on the issue. At the time
of jury selection . . . Ovian referred [the petitioner] to
. . . Kenneth Selig, a psychiatrist and an attorney, for
evaluation. . . . Ovian testified that, among other
things, he discussed the viability of a lack of capacity
defense with . . . Selig and, based on that discussion,
reaffirmed his view that it was not a viable defense for
[the petitioner]. . . . Ovian relayed that opinion to [the
petitioner]. [The petitioner] denies ever meeting with
. . . Selig, but the transcripts of the proceedings in
the underlying case are consistent with the facts as
described by . . . Ovian and include references to the
lack of capacity issue.
‘‘[The petitioner’s] chief concern throughout . . .
Ovian’s representation was the inadequate mental
health care he received as an inmate. This became a
focus of the defense strategy in the case, particularly
after a video of the underlying events undermined [the
petitioner’s] claim of self-defense. As the trial
approached . . . Ovian pursued a strategy he hoped
would limit the potential period during which [the peti-
tioner] would be confined and at the same time raise
the possibility that the nature of his confinement would
be substantially the same as if he had successfully pur-
sued a lack of capacity defense. To this end . . . Ovi-
an’s referral to . . . Selig was aimed at determining
whether there were any undiagnosed mental health con-
ditions applicable to [the petitioner] that should be
weighed in his sentencing. . . . That effort was
unavailing. [Ovian] persisted, however, and negotiated
an open plea agreement on the assault charges, subject
to the state’s further agreement that [the petitioner]
would be referred for a psychiatric examination pursu-
ant to General Statutes § 17a-566.3 That process opened
up the prospect that [the petitioner] could plead guilty,
cap his exposure to incarceration and still be held in
the custody of the Department of Mental Health and
Addiction Services at [Whiting]. Despite [the petition-
er’s] claim to the contrary, the court finds that . . .
Ovian explained this strategy and this process to [the
petitioner] and informed him that the results of the
§ 17a-566 examination were uncertain.
‘‘On March 3, 2011, [the petitioner] pleaded guilty
under the Alford doctrine4 pursuant to the plea agree-
ment negotiated by . . . Ovian. He was thoroughly can-
vassed by the court and then referred for an initial
examination pursuant to § 17a-566. In advance of the
examination, [the petitioner] took issue with one of the
examiners assigned to the matter, claiming that she had
a bias against him. . . . Ovian looked into that claim,
which was counter to his own experience with the
examiner, by speaking with her and becoming assured
it would not be an issue. The examiners concluded,
however, that despite [the petitioner’s] extensive his-
tory of mental illness and behavioral difficulties, he
could be treated appropriately by the Department of
Correction and no referral to [Whiting] was recom-
mended. This conclusion was consistent with the opin-
ion expressed orally to . . . Ovian by . . . Selig. [The
petitioner] took issue with the results of the examina-
tion but, because they were consistent with . . . Selig’s
conclusions . . . Ovian did not challenge them. Rather
than antagonize the state with a request for a continu-
ance and the retention of yet another expert, which
. . . Ovian believed might negatively impact the state’s
position at sentencing . . . Ovian proceeded with the
presentence investigation process and sentencing,
where the court would have access to the § 17a-566
report and additional background information. The
transcript of the sentencing hearing reflects the fact
that the court had been provided with the available
mental health information, including the § 17a-566
report, that detailed [the petitioner’s] childhood abuse,
troubled past and extensive psychiatric history. . . .
Ovian leaned on those materials in presenting his argu-
ment to the court and even invited the court to order
further examination of [the petitioner], despite the rec-
ommendations in the § 17a-566 report. The court’s
remarks reflect that these issues were considered by
the court in deciding upon a sentence.
‘‘After disposition of the 2009 case, [the petitioner]
was again charged with assaulting a correction officer
in July, 2012. Attorney Cynthia Love represented [the
petitioner] on that charge, which was prosecuted in
Norwich. . . . Love referred [the petitioner] for evalua-
tion by . . . Andrew Meisler, a clinical and forensic
psychologist. Meisler authored a report dated February
13, 2013, offering his opinions on [the petitioner’s] men-
tal condition and the factors that contributed to the
2012 incident. In addition to [the petitioner’s] prior diag-
noses . . . Meisler diagnosed [the petitioner] with
‘[c]omplex PTSD’ which, as he explained at trial in
this case, is a diagnosis that has been considered for
recognition but is not currently recognized by the Diag-
nostic and Statistical Manual of Mental Disorders (DSM-
5). It distinguishes a subset of individuals with PTSD
who, based on the nature of their underlying trauma,
suffer ‘much greater disruptions in relationship to oth-
ers, self-regulation . . . .’ In the case of [the petitioner]
. . . Meisler’s opinion is that certain triggers in his envi-
ronment cause [the petitioner] to lose the ability to
control his behavior. . . . Meisler perceives a pattern
of events that lead [the petitioner] into a violent inci-
dent, including a change in his surroundings combined
with a decrease or elimination of medication therapy
and a circumstance in which [the petitioner] perceives
a threat that triggers an impulsive, violent reaction.
’’With . . . Meisler’s support, [the petitioner] went
to trial on the 2012 charges and was acquitted on a
lack of capacity defense in July, 2013. . . . Meisler was
subsequently disclosed as an expert in this case. Point-
ing out that the 2009 incident followed a transfer of
[the petitioner] to Northern Correctional Institution,
what . . . Meisler views as a ‘negative assessment by
psychiatric staff at Northern [Correctional Institution]’
and a discontinuance of medications . . . Meisler
believes [that the petitioner] was destabilized at the
time of the 2009 incident as well. In response to what
[the petitioner] perceived to be unfair treatment of
another inmate by correction officers . . . Meisler
opines that when [the petitioner] assaulted the correc-
tion officers in 2009, he was ‘suffering from acute mental
illness with marked impairments in emotional regula-
tion and impulse control that prevented him from con-
trolling his behavior in accordance with the law.’ ’’
(Footnotes added and omitted.)
With that factual underlayment, the court then
addressed the petitioner’s claim that Ovian’s represen-
tation of him was constitutionally deficient because he
failed to present a lack of capacity defense.5 The court
reasoned: ‘‘The outcome of [the petitioner’s] trial arising
out of the 2012 charge of assaulting a correction officer
unavoidably enhances the effect of hindsight on the
defense strategy pursued by . . . Ovian in connection
with the 2009 charges. It is essential, therefore, to
emphasize that the court has a responsibility in this
case to reconstruct the circumstances as they were
presented to . . . Ovian and to evaluate the represen-
tation he provided from his perspective at the time, not
through the prism of hindsight. While . . . Ovian did
not consider a lack of capacity defense viable on its
merits, he also perceived it as potentially counterpro-
ductive. With charges pending that exposed [the peti-
tioner] to forty years of incarceration, a successful lack
of capacity defense would nevertheless have left [the
petitioner] at risk of being confined for a very long
time, subject to future determinations concerning his
eligibility for release. See General Statutes § 17a-580 et
seq. This prospect stood in contrast to the period of
confinement under consideration by the state in plea
negotiations, as little as eighteen months at one point.
. . . Ovian discussed this strategic consideration with
[the petitioner], in addition to the merits of a lack of
capacity defense. . . .
‘‘Meisler’s testimony in this case establishes, to the
court’s satisfaction, that a plausible defense of lack of
capacity could have been developed and pursued by
. . . Ovian. Given the serious and persistent mental
health issues exhibited by [the petitioner], and the cor-
relation between those issues and his violent behavior,
it was something to consider and the court finds . . .
Ovian took the initial steps to look into that defense.
Having done so, it was incumbent upon him to obtain
a complete mental health history and to obtain a thor-
oughly informed expert opinion on how [the petition-
er’s] mental health issues might impact his defense.
Having recognized that responsibility . . . Ovian did
not carry it out completely. He delegated the task of
obtaining the complete history and did not ensure that
task had been properly completed. He recognized the
need to consult with an expert early on in the case, but
did not do so until the time of jury selection. To the
extent that his performance is subject to criticism, these
are the principal considerations.’’
The habeas court analogized the factual circum-
stances in this case to those presented in this court’s
earlier decision in Ramos v. Commissioner of Correc-
tion, 172 Conn. App. 282, 159 A.3d 1174, cert. denied,
327 Conn. 904, 170 A.3d 1 (2017). The court explained
that, in Ramos, the petitioner’s counsel had ‘‘requested
his medical records from the Department of Correction
. . . and, upon receipt, forwarded them to . . . Peter
Zelman, a forensic psychiatrist. The records obtained
from [the Department of Correction], however,
belonged to another inmate with the same name but
with far fewer psychiatric issues and a much less severe
drug history than the petitioner. This error was not
discovered by [the petitioner’s counsel] during her rep-
resentation of the petitioner. The habeas petition
alleged [the petitioner’s counsel] rendered ineffective
assistance based on her failure to ensure that the
records relied upon by . . . Zelman were accurate. The
court agreed that counsel had fallen short of her respon-
sibilities because she had ‘assumed an obligation to
conduct her investigation in a constitutionally adequate
manner, which required her to obtain and furnish accu-
rate medical information to the expert with whom she
consulted . . . so that the expert’s opinion would be
well-grounded and she could appropriately rely upon
it in developing her case strategy and advising her client
whether to go to trial.’ Id., 300–301.’’
With Ramos in mind, the habeas court reasoned:
‘‘Like [the petitioner’s counsel in Ramos] . . . Ovian
erred by not ensuring that his office had obtained a
complete set of [the petitioner’s] mental health records.
It was not his intention to do anything less than that
and he relied on his staff to complete that task, but still
it remained his responsibility.’’6
The court continued: ‘‘The court’s analysis of . . .
Ovian’s performance is complicated by the fact that
there was a substantial strategic consideration overlay-
ing the incomplete investigation of a defense based on
lack of capacity. Even if . . . Ovian had determined
that a lack of capacity defense was conceivable, it was
also his view that pursuing that defense was not the
wisest strategy, given the difference between [the peti-
tioner’s] exposure and the prison time being contem-
plated in plea negotiations. [Ovian] believed that [the
petitioner’s] mental health issues could be put to better
use in attempting to negotiate a plea agreement that
would limit the length of [the petitioner’s] confinement
and also create an opportunity to argue that [the peti-
tioner] should be confined at Whiting. That is the strat-
egy he discussed with [the petitioner] extensively and
the one that ultimately played out at the time of the
plea and sentencing. . . .
‘‘First, the court does not agree that . . . Ovian’s
pursuit of a mitigation strategy on the basis of [the
petitioner’s] mental health problems, rather than a lack
of capacity defense, was deficient. This was a strategic
decision, explained in detail to [the petitioner], which
was not principally based upon the merits of a potential
lack of capacity defense, but rather a strategy that . . .
Ovian believed was in [the petitioner’s] overall best
interests. ‘[T]o establish deficient performance by coun-
sel, a defendant must show that, considering all of the
circumstances, counsel’s representation fell below an
objective standard of reasonableness as measured by
prevailing professional norms . . . . Moreover, strate-
gic decisions of counsel, although not entirely immune
from review, are entitled to substantial deference by
the court.’ . . . Skakel v. Commissioner of Correction,
329 Conn. 1, 31, [188 A.3d 1] (2018), [cert. denied,
U.S. , 139 S. Ct. 788, 202 L. Ed. 2d 569 (2019)]. While
strategic decisions do not excuse inadequate investiga-
tions, ‘strategic choices made after less than complete
investigation are reasonable precisely to the extent that
reasonable professional judgments support the limita-
tions on investigation.’ Id., 32, quoting Strickland v.
Washington, [466 U.S. 668, 690–91, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984)]. In this case, based on the totality
of the circumstances, the court concludes that . . .
Ovian’s decision to pursue a mitigation strategy met
the standard of objective reasonableness, even though
he and . . . Selig did not have a complete set of [the
petitioner’s] mental health records. They both did have
access to . . . Grayson’s 2000 evaluation, which . . .
Meisler himself characterized as ‘a thorough record
review and evaluation,’ as well as [the petitioner’s]
extensive, more recent records from [the Department of
Correction]. Whatever information the missing records
might have added, the court concludes they would not
have changed . . . Ovian’s strategy, which was based
upon his perception that it was not in [the petitioner’s]
best interests to pursue a lack of capacity defense.
That was a strategic decision entitled to substantial
deference. See Pladsen v. Commissioner of Correction,
96 Conn. App. 849, [850–51], 902 A.2d 704 (2006) (same
strategy pursued by . . . Ovian was not ineffective
assistance of counsel).’’7 (Citations omitted.)
On the basis of the foregoing, the court concluded: ‘‘In
sum, while . . . Ovian’s performance may be subject
to some legitimate criticism relating to the failure to
obtain a complete medical history . . . in the totality of
the circumstances these shortcomings do not constitute
‘errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the [s]ixth
[a]mendment.’ Skakel v. Commissioner of Correction,
supra, 329 Conn. 30, quoting Strickland v. Washington,
[supra] 466 U.S. 687.’’ The court also concluded that
the petitioner failed to prove that he was prejudiced
by Ovian’s allegedly deficient representation of him.
Accordingly, the court denied the petition for a writ of
habeas corpus. The court thereafter granted the peti-
tioner’s petition for certification to appeal, and this
appeal followed.
The standard of review in a habeas corpus proceeding
challenging the effective assistance of trial counsel is
well settled. ‘‘To succeed on a claim of ineffective assis-
tance of counsel, a habeas petitioner must satisfy the
two-pronged test articulated in Strickland v. Washing-
ton, [supra, 466 U.S. 687]. Strickland requires that a
petitioner satisfy both a performance prong and a preju-
dice prong. To satisfy the performance prong, a claim-
ant must demonstrate that counsel made errors so seri-
ous that counsel was not functioning as the counsel
guaranteed . . . by the [s]ixth [a]mendment. . . . To
satisfy the prejudice prong, a claimant must demon-
strate that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. . . . Because
both prongs . . . must be established for a habeas peti-
tioner to prevail, a court may dismiss a petitioner’s
claim if he fails to meet either prong. . . .
‘‘On appeal, [a]lthough the underlying historical facts
found by the habeas court may not be disturbed unless
they [are] clearly erroneous, whether those facts consti-
tuted a violation of the petitioner’s rights [to the effec-
tive assistance of counsel] under the sixth amendment
is a mixed determination of law and fact that requires
the application of legal principles to the historical facts
of [the] case. . . . As such, that question requires ple-
nary review by this court unfettered by the clearly erro-
neous standard.’’ (Citations omitted; internal quotation
marks omitted.) Jordan v. Commissioner of Correc-
tion, 197 Conn. App. 822, 830–31, 234 A.3d 78, cert.
granted, 335 Conn. 931, 236 A.3d 218 (2020).
On appeal, the petitioner claims that the habeas court
erred in rejecting his claim that Ovian rendered ineffec-
tive assistance of counsel by failing to pursue a lack of
capacity defense. Specifically, the petitioner claims that
the habeas court erred in concluding that Ovian’s repre-
sentation was not deficient because it erroneously
assumed that Ovian would still have pursued a mitiga-
tion strategy, versus a lack of capacity defense, if he
had obtained all of the petitioner’s medical records,
and his trial strategy did not advance the petitioner’s
litigation objective, which, in this case, was to obtain
mental health treatment at Whiting.
We have examined the record on appeal, the briefs
and arguments of the parties, and conclude that the
judgment of the habeas court, Farley, J., should be
affirmed. Because the habeas court thoroughly
addressed the petitioner’s argument raised in this
appeal that Ovian’s representation of him was constitu-
tionally deficient, we adopt its well reasoned decision,
as quoted at length herein, as a proper statement of
both the facts and the applicable law on that issue. Any
further discussion by this court would serve no useful
purpose. See, e.g., Woodruff v. Hemingway, 297 Conn.
317, 321, 2 A.3d 857 (2010); Brander v. Stoddard, 173
Conn. App. 730, 732, 164 A.3d 889, cert. denied, 327
Conn. 928, 171 A.3d 456 (2017).
The judgment is affirmed.
In this opinion the other judges concurred.
1
The petitioner also challenges the habeas court’s determination that he
failed to prove that he was prejudiced by his counsel’s representation of
him. Because we conclude that the habeas court correctly determined that
his counsel’s performance was not constitutionally deficient, we do not
reach the petitioner’s prejudice claim. See, e.g., Sanchez v. Commissioner
of Correction, 314 Conn. 585, 606, 103 A.3d 954 (2014) (reviewing court
can find against petitioner on either performance or prejudice prong of
ineffective assistance of counsel claim).
2
The petitioner initially filed a petition for a writ of habeas corpus on
May 19, 2011.
3
General Statutes § 17a-566 provides in relevant part: ‘‘(a) Except as
provided in section 17a-574 any court prior to sentencing a person convicted
of an offense for which the penalty may be imprisonment in the Connecticut
Correctional Institution at Somers . . . may if it appears to the court that
such person has psychiatric disabilities and is dangerous to himself or others,
upon its own motion or upon request of any of the persons enumerated in
subsection (b) of this section and a subsequent finding that such request is
justified, order the commissioner to conduct an examination of the convicted
defendant by qualified personnel of the hospital. Upon completion of such
examination the examiner shall report in writing to the court. Such report
shall indicate whether the convicted defendant should be committed to the
diagnostic unit of the hospital for additional examination or should be
sentenced in accordance with the conviction. . . .
‘‘(b) The request for such examination may be made by the state’s attorney
or assistant state’s attorney who prosecuted the defendant for an offense
specified in this section, or by the defendant or his attorney in his behalf.
. . .’’
In 2018, the statute was amended to replace references to ‘‘division’’ and
‘‘institute’’ with ‘‘hospital’’ to reflect the name change of the Whiting Forensic
Division of Connecticut Valley Hospital, formerly Whiting Forensic Institute,
to Whiting Forensic Hospital.
4
‘‘Under North Carolina v. Alford, [400 U.S. 25, 91 S. Ct. 160, 27 L. Ed.
2d 162 (1970)], a criminal defendant is not required to admit his guilt . . .
but consents to being punished as if he were guilty to avoid the risk of
proceeding to trial. . . . A guilty plea under the Alford doctrine is a judicial
oxymoron in that the defendant does not admit guilt but acknowledges that
the state’s evidence against him is so strong that he is prepared to accept
the entry of a guilty plea nevertheless.’’ (Internal quotation marks omitted.)
State v. Walker, 187 Conn. App. 776, 778 n.2, 204 A.3d 38, cert. denied, 331
Conn. 914, 204 A.3d 703 (2019).
5
The habeas court stated that the petitioner claimed, at trial and in his
posttrial brief, that Ovian’s representation of him was deficient because
Ovian ‘‘conducted the majority of the defense without consulting with an
expert regarding a potential lack of capacity defense, waiting until the eve
of trial to retain . . . Selig; failed to properly supervise his staff charged
with the responsibility to compile the records of [the petitioner’s] mental
health history; failed to obtain all the mental health records and provide
them to . . . Selig; failed to keep [the petitioner] informed and failed to
explain to him all potential defenses and the potential mitigating impacts
arising out of his mental health condition; limited the scope of . . . Selig’s
inquiry to what treatment would be appropriate for [the petitioner] were
he to be released to the community; failed to retain an expert and challenge
the recommendations in the § 17a-566 report; failed to make proper use of
the § 17a-566 report and other mental health records at the sentencing
hearing; and failed to maintain thorough notes on all the conversations he
had while conducting [the petitioner’s] defense.’’ Because the petitioner’s
challenge on appeal is focused on Ovian’s failure to obtain all of the petition-
er’s mental health records and to present a lack of capacity defense, we
focus on the portions of the habeas court’s analysis that address those issues.
6
We note that, in Ramos, the habeas court did not find that the petitioner’s
counsel was constitutionally ineffective. This court rejected the petitioner’s
challenge to the habeas court’s judgment in Ramos on the ground that he
failed to satisfy the prejudice prong of his ineffective assistance claim. See
Ramos v. Commissioner of Correction, supra, 172 Conn. App. 301–302. This
court noted, however, that it was ‘‘at least debatable among jurists of reason
whether the making of such a mistake when reviewing critical medical
records that purportedly belong to one’s own client satisfies the minimum
requirements of our state and federal constitutions as to the adequacy of
trial counsel’s performance.’’ Id., 301.
7
We note that Meisler acknowledged that Grayson’s report, which Ovian
had obtained and forwarded to Selig, provided a thorough review of the
petitioner’s mental health history. Therefore, any records obtained by Ovian
pertaining to the time period covered in Grayson’s report would have been
cumulative of the records that Ovian had obtained and given to Selig.