Bozelko v. Commissioner of Correction ( 2016 )

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CHANDRA BOZELKO v. COMMISSIONER
OF CORRECTION
(AC 35990)
DiPentima, C. J., and Beach and Bear, Js.
Argued October 14, 2015—officially released February 2, 2016
(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
Chandra Bozelko, self-represented, the appellant
(petitioner).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were Kevin D. Lawlor, state’s attor-
ney, Angela R. Macchiarulo, senior assistant state’s
attorney, and Yamini Menon, special deputy assistant
state’s attorney, for the appellee (respondent).
Opinion
BEACH, J. The petitioner, Chandra Bozelko, appeals
from the judgment of the habeas court denying her
petition for a writ of habeas corpus. She claims that
the court erred in denying her claim of ineffective assis-
tance of trial counsel due to a failure to investigate
effectively.1 She further argues that the court abused its
discretion in denying certification to appeal. We dismiss
the appeal.
The petitioner claims that her counsel provided inef-
fective assistance in the course of defending her against
charges of jury tampering. She pleaded guilty to and was
convicted of making telephone calls to jurors during
her criminal trial on certain otherwise unrelated prior
charges.2 The habeas court recited the following facts
with respect to the jury tampering: ‘‘On the evening of
October 4, 2007, while the petitioner’s criminal jury
trial was underway, several jurors assigned to the case
received telephone calls at their residences from a tele-
phone number identified on their respective caller iden-
tification systems as originating from Kate’s Paperie, a
business establishment in Greenwich, Connecticut. A
male caller asked the jurors questions regarding their
status as jurors and instructed the jurors that they
should not find the petitioner guilty of the pending
charges. The petitioner submitted an affidavit to the
court indicating that she received several calls from
jurors at her residence on October 8, 2007.
‘‘The police conducted an extensive investigation and
determined that the calls did not originate from Kate’s
Paperie or from the jurors’ residences. The police deter-
mined that the caller identification information for
these calls had been ‘spoofed,’ a process whereby the
caller attaches false identity contact information to the
communication. The police discovered that a ‘Spoof-
Card’ was purchased on April 12, 2007, with the com-
puter located in the petitioner’s residence and her moth-
er’s credit card. A SpoofCard allows the user to change
caller identification information through the use of a
computer service. A SpoofCard user also has the ability
to change his or her voice to that of a male or female.
‘‘The call records showed that 123 calls were made
with the [Spoof]card beginning on April 12, 2007, and
ending on October 4, 2007. Ninety-four of the calls origi-
nated from the petitioner’s father’s fax machine phone
number, nineteen of the calls originated from the peti-
tioner’s residential phone number and ten of the calls
originated from a Tracfone phone number. The Trac-
fone, a prepaid cell phone, was activated from the com-
puter in the petitioner’s residence. The SpoofCard and
the Tracfone were used to place the phone calls to the
jurors on October 4, 2007. The calls took place over
the span of an hour and a half, beginning at 7:22 p.m.
and ending at 8:52 p.m. All of the phone calls made
using the SpoofCard were recorded.
‘‘A second SpoofCard was purchased on October 8,
2007, with the computer located in the petitioner’s resi-
dence and a prepaid credit card that was found in the
petitioner’s bedroom when the search warrant was exe-
cuted. The second SpoofCard and the Tracfone were
used to make calls to the petitioner’s residence from
phone numbers spoofed to appear as if the calls origi-
nated from the jurors’ residences. There were no
recordings made of these calls.’’ The habeas court fur-
ther explained that, in connection with this incident,
‘‘[t]he petitioner was charged with six counts of attempt
to commit tampering with a juror in violation of General
Statutes §§ 53a-49 (a) (2) and 53a-154, one count of
false statement in the second degree in violation of
General Statutes [Rev. to 2007] § 53a-157b and one
count of tampering with physical evidence in violation
of General Statutes § 53a-155 (1). The petitioner was
also charged with [crimes] arising from the same allega-
tions in a separate case in the Stamford judicial district.
The petitioner’s exposure on these charges was approx-
imately fifty years.
‘‘Attorney Dean Popkin represented the petitioner.
The petitioner entered a guilty plea, under the Alford
doctrine,3 to three counts of attempt to commit tamper-
ing with a juror on March 30, 2010. On May 24, 2010,
the petitioner was sentenced to twenty-seven months
incarceration on each count, to run concurrently, for
a total effective sentence of twenty-seven months
imprisonment.4 The state nolled the remaining charges
against the petitioner in both this case and the Stam-
ford case.’’
The petitioner filed a petition for a writ of habeas
corpus in August, 2010. In the operative petition, she
claimed that her trial counsel was ineffective for failing
to conduct an adequate pretrial investigation prior to
the entry of her plea. She claimed that he did not effec-
tively investigate the petitioner’s innocent use of
another telephone line in the same time frame in which
the telephone calls to the jurors were taking place,
and that he did not effectively investigate all of the
telephone records. The court denied the petition and
found that the petitioner had failed to establish both
deficient performance and prejudice. The habeas court
denied her petition for certification to appeal. This
appeal followed.
As a threshold matter, the petitioner claims that the
habeas court abused its discretion in denying her peti-
tion for certification to appeal.5 ‘‘Faced with the habeas
court’s denial of certification to appeal, a petitioner’s
first burden is to demonstrate that the habeas court’s
ruling constituted an abuse of discretion. . . . A peti-
tioner may establish an abuse of discretion by demon-
strating that the issues are debatable among jurists of
reason . . . [the] court could resolve the issues [in a
different manner] . . . or . . . the questions are ade-
quate to deserve encouragement to proceed further.
. . . The required determination may be made on the
basis of the record before the habeas court and applica-
ble legal principles. . . .
‘‘In 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 peti-
tioner’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. Absent
such a showing by the petitioner, the judgment of the
habeas court must be affirmed.’’ (Citation omitted;
internal quotation marks omitted.) Ham v. Commis-
sioner of Correction, 152 Conn. App. 212, 217–18, 98
A.3d 81, cert. denied, 314 Conn. 932, 102 A.3d 83 (2014).
Resolution of the petitioner’s threshold claim that the
court abused its discretion in denying her petition for
certification to appeal requires an examination of her
underlying claims, and, thus, we address these claims
in turn.
The petitioner claims that the court erred: (1) in find-
ing that her counsel’s performance was not deficient,
and (2) in using an incorrect standard for determining
prejudice. We are not persuaded.
‘‘In a habeas appeal, this court cannot disturb the
underlying facts found by the habeas court unless they
are clearly erroneous, but our review of whether the
facts as found by the habeas court constituted a viola-
tion of the petitioner’s constitutional right to effective
assistance of counsel is plenary.’’ (Internal quotation
marks omitted.) Williams v. Commissioner of Correc-
tion, 117 Conn. App. 510, 519, 978 A.2d 1167 (2009).
‘‘[T]he governing legal principles in cases involving
claims of ineffective assistance of counsel arising in
connection with guilty pleas are set forth in Strickland
[v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984)] and Hill [v. Lockhart, 474 U.S. 52, 106
S. Ct. 366, 88 L. Ed. 2d 203 (1985)]. [According to]
Strickland, [an ineffective assistance of counsel] claim
must be supported by evidence establishing that (1)
counsel’s representation fell below an objective stan-
dard of reasonableness, and (2) counsel’s deficient per-
formance prejudiced the defense because there was a
reasonable probability that the outcome of the proceed-
ings would have been different had it not been for the
deficient performance. . . . The first prong requires a
showing that counsel made errors so serious that coun-
sel was not functioning as the counsel guaranteed . . .
by the [s]ixth [a]mendment. . . . Under . . . Hill
. . . which . . . modified the prejudice prong of the
Strickland test for claims of ineffective assistance when
the conviction resulted from a guilty plea, the evidence
must demonstrate that there is a reasonable probability
that, but for counsel’s errors, [the petitioner] would not
have pleaded guilty and would have insisted on going
to trial.’’ (Emphasis omitted; internal quotation marks
omitted.) Patterson v. Commissioner of Correction,
150 Conn. App. 30, 35, 89 A.3d 1018 (2014). An ineffec-
tive assistance of counsel claim ‘‘will succeed only if
both prongs [of Strickland as modified by Hill] are
satisfied.’’ (Internal quotation marks omitted.) Mozell
v. Commissioner of Correction, 291 Conn. 62, 77, 967
A.2d 41 (2009).
I
DEFICIENT PERFORMANCE
The petitioner argues that the court erred in determin-
ing that Popkin’s performance was not deficient. She
contends that he rendered deficient performance in that
he failed to examine the telephone records provided
by the state during discovery, which show telephone
calls made on the night in question from the landline
at her residence, and that he failed to interview one
Willie Green, since deceased. Green, an employee at
Kinsella Commons, a mental health and substance
abuse treatment center, allegedly was the recipient of
an innocent call from the landline at the residence on
the night in question. The petitioner claims that Green
could have provided useful information about the call.6
We disagree with the petitioner’s claim in this regard.
The following additional findings of fact and conclu-
sions of law were made by the habeas court. ‘‘At trial,
the petitioner introduced records from AT&T and
Kinsella Commons to demonstrate what additional
investigation by Attorney Popkin would have revealed.
The AT&T phone records submitted into evidence indi-
cate that several calls were made from the landline at
the petitioner’s residence on the evening of October 4,
2007. The first outgoing phone call was made at 7:24
p.m., and the last outgoing phone call was made at
10:01 p.m. The durations of the phone calls ranged from
approximately one second to four and a half minutes.
The petitioner testified that the outgoing calls were
made to Kinsella Commons, [a patient at the facility],
relatives of [the patient], and the petitioner’s sisters.
The notes submitted from Kinsella Commons, handwrit-
ten by Willie Green, a supervisor of the center’s resi-
dents, state that Green received a phone call from the
petitioner on the evening of October 4, 2007. Green’s
notes indicate that the call was received at 7:45 p.m.,
but they do not indicate how long the phone call lasted.
The AT&T phone records indicate that one phone call
was made from the petitioner’s residence to Kinsella
Commons at 7:48 p.m., and the call ended at 7:52 p.m.
‘‘Attorney Popkin hired an investigator in this case.
The investigator attempted to contact individuals identi-
fied by the petitioner as having some involvement with
the case, but they refused to speak with him. The investi-
gator also arranged for a forensic review of the petition-
er’s hard drive, but the forensic examiner found more
evidence on the computer that was detrimental to the
petitioner than the state police had found. The court
credits Attorney Popkin’s testimony that he also
requested the phone records to substantiate the peti-
tioner’s claimed theory of defense, but he did not find
them to be helpful. The phone records did not prove that
it was the petitioner making the phone calls. Moreover,
Attorney Popkin determined that several brief phone
calls to Kinsella Commons would not account for the
hour and a half time frame during which the calls were
made to the jurors.
‘‘Attorney Popkin wrote a letter to the petitioner,
recommending that she plead guilty due to the strength
of the state’s case against her and her lack of a viable
defense. While the voice on the tape recordings of the
phone calls made to the jurors using the SpoofCard
was disguised in a male voice, the voice on other phone
calls recorded on the card was not disguised. Attorney
Popkin determined that the petitioner’s defense would
require her to testify, and he believed that any jury that
heard the tape recordings and the petitioner’s voice
would determine that it was her voice on those phone
calls. Attorney Popkin testified that he reviewed the
tapes with the petitioner, and that she decided to plead
guilty after hearing the recordings. He believed that the
plea deal was very favorable in light of the exposure she
faced. The sentencing court, Rodriguez, J., thoroughly
canvassed the petitioner regarding her plea.
‘‘Pursuant to the foregoing, the court finds that the
evidence submitted by the petitioner is insufficient to
establish the existence of exculpatory information that
should have been discovered had a proper investigation
been conducted. Attorney Popkin’s investigation was
objectively reasonable under the circumstances of this
case, and the petitioner has not met her burden of
proving deficient performance for purposes of her inef-
fective assistance claim.’’
The court did not err in concluding that Popkin had
not rendered deficient performance. He hired an investi-
gator and examined the petitioner’s defense that she
was making telephone calls from the landline at her
residence during the time in which the telephone calls
to the jurors had been made. He found the telephone
records that he had requested, in order to support the
petitioner’s defense theory, to be unhelpful. The records
did not prove that the petitioner had made the telephone
calls herself, and, because of the brief duration of the
telephone calls from the landline, even if the petitioner
had made those calls, she still had an hour and a half
in which to telephone the jurors using the cell phone.7
Popkin determined that not only were the additional
telephone calls on the night in question of insufficient
duration reasonably to eliminate the petitioner as the
maker of the incriminating calls—for instance, the call
to Green accounted for only approximately four
minutes of the one and one half hour time frame in
which the jurors were telephoned—but also that the
jury would be able to match the voice on the tape
recorded telephone calls to the petitioner’s voice, which
of course would be heard if she testified. Popkin testi-
fied that roughly twenty calls were made using the
SpoofCard and that the caller’s voice was disguised on
some of the calls. He testified that other calls captured
what Popkin believed to be the petitioner’s real voice.
He further testified that the petitioner decided to plead
guilty after hearing the recordings of her voice. The
court determined that Popkin’s investigation was objec-
tively reasonable under the circumstances of the case.
The petitioner argues, however, that Popkin was inef-
fective for not investigating the petitioner’s defense fur-
ther. ‘‘[C]ounsel need not track down each and every
lead or personally investigate every evidentiary possibil-
ity before choosing a defense and developing it . . .
[as] [e]ffective assistance of counsel imposes an obliga-
tion [on] the attorney to investigate all surrounding
circumstances of the case and to explore all avenues
that may potentially lead to facts relevant to the defense
of the case. . . . In other words, counsel has a duty to
make reasonable investigations or to make a reasonable
decision that makes particular investigations unneces-
sary. . . . If counsel makes strategic decisions after
thorough investigation, those decisions are virtually
unchallengeable . . . .’’ (Citations omitted; internal
quotation marks omitted.) Taft v. Commissioner of
Correction, 159 Conn. App. 537, 547, 124 A.3d 1, cert.
denied, 320 Conn. 910, A.3d (2015). We conclude
that the court did not err in concluding that Popkin’s
performance was not constitutionally deficient.
II
PREJUDICE
The petitioner next argues that the habeas court
relied on the superseded prejudice standard enunciated
in Copas v. Commissioner of Correction, 234 Conn.
139, 151, 662 A.2d 178 (1995), and examined only the
strength of the state’s case. The petitioner argues that
the court failed to use the proper prejudice standard
articulated in Carraway v. Commissioner of Correc-
tion, 317 Conn. 594, 600 n.6, 119 A.3d 1153 (2015).
We disagree.
‘‘For claims of ineffective assistance of counsel aris-
ing out of the plea process, the United States Supreme
Court has modified the [prejudice] prong of the Strick-
land test to require that the petitioner produce evidence
‘that there is a reasonable probability that, but for coun-
sel’s errors, [the petitioner] would not have pleaded
guilty and would have insisted on going to trial.’ Hill
v. Lockhart, supra, 474 U.S. 59.’’ Thiersaint v. Commis-
sioner of Correction, 316 Conn. 89, 101, 111 A.3d 829
(2015). In Copas v. Commissioner of Correction, supra,
234 Conn. 151, our Supreme Court interpreted Hill to
require that in order to prove prejudice the petitioner
must ‘‘demonstrate that [s]he would not have pleaded
guilty, that [s]he would have insisted on going to trial,
and that the evidence that had been undiscovered or
the defenses [s]he claims should have been introduced
were likely to have been successful at trial.’’ In Carra-
way, our Supreme Court held that the prejudice stan-
dard enunciated in Copas had been overruled, sub
silentio, by statements in more recent cases in which
it ‘‘specifically disapproved of the petitioner’s charac-
terization of the prejudice prong as ‘a reasonable proba-
bility that the result of the trial court proceedings would
have been different’ and instead stated that ‘[i]n the
context of a guilty plea . . . to succeed on the preju-
dice prong the petitioner must demonstrate that, but
for counsel’s alleged ineffective performance, the peti-
tioner would not have pleaded guilty and would have
proceeded to trial.’ ’’ Carraway v. Commissioner of
Correction, supra, 317 Conn. 600 n.6, citing Washington
v. Commissioner of Correction, 287 Conn. 792, 835, 950
A.2d 1220 (2008) and Crawford v. Commissioner of
Correction, 285 Conn. 585, 598, 940 A.2d 789 (2008).
The habeas court used the proper prejudice standard
under Carraway. In its introductory discussion of law,
the court specifically stated the same standard as that
enunciated in Carraway. The court later specifically
found: ‘‘The evidence submitted by the petitioner is
insufficient to establish the existence of exculpatory
information that would have changed the result in this
case. The telephone records reveal that calls were made
on the landline in the petitioner’s residence; however,
the telephone calls made to the jurors were placed on
a Tracfone. The duration of the outgoing telephone calls
do not amount to the time needed to attempt to tamper
with the jurors. Furthermore, there is no evidence that
it was the petitioner who was making the telephone
calls. The only evidence of a telephone call made by
the petitioner on October 4, 2007, is a four minute tele-
phone call made to Green around 7:45 p.m. The peti-
tioner pleaded guilty as a result of the strength of the
state’s case, particularly, the existence of the tape
recordings featuring the petitioner’s voice that the state
intended to introduce into evidence, and the potential
exposure that she faced if convicted. The court does
not credit the petitioner’s testimony that she would
have gone to trial in light of these circumstances. The
court finds that there is not a reasonable probability
that this newly submitted evidence would have changed
the petitioner’s decision to plead guilty.’’
The court clearly assessed whether the petitioner,
but for counsel’s alleged ineffective performance,
would not have pleaded guilty and would have pro-
ceeded to trial. The court discredited the petitioner’s
testimony that she would have gone to trial.8 The court
analyzed the strength of the state’s case, to be sure, as
the strength of the state’s case played a role in the
petitioner’s decision to plead guilty and in the court’s
determination of whether that decision would likely
have changed if the ‘‘new’’ evidence had been developed
at the time of the plea. The court concluded that it was
not reasonably probable that the new evidence would
have changed the petitioner’s mind to plead guilty. We
conclude that the court used the proper standard in
assessing prejudice.
After a thorough review of the record and briefs, we
conclude that the petitioner did not demonstrate that
the issues she has raised in her petition for certification
to appeal are debatable among jurists of reason, that a
court could resolve those issues differently or that the
questions raised deserve encouragement to proceed fur-
ther.9 Accordingly, we conclude that the petitioner has
failed to demonstrate that the court abused its discre-
tion in denying her petition for certification to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The petitioner also claimed ineffective assistance of habeas counsel.
This issue was not raised before or addressed by the habeas court and,
thus, we decline to afford it review. ‘‘It is fundamental that claims of error
must be distinctly raised and decided in the [habeas] court before they are
reviewed on appeal. As a result, Connecticut appellate courts will not address
issues not decided by the [habeas] court.’’ (Internal quotation marks omit-
ted.) Tompkins v. Freedom of Information Commission, 136 Conn. App.
496, 511, 46 A.3d 291 (2012).
2
The unrelated prior charges, and the facts underlying them, for which
the petitioner was ultimately convicted, are set forth in State v. Bozelko,
119 Conn. App. 483, 987 A.2d 1102, cert. denied, 295 Conn. 916, 990 A.2d
867 (2010), cert. denied, U.S. , 134 S. Ct. 1314, 188 L. Ed. 2d 331 (2014).
3
See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed 2d
162 (1970).
4
At the time she filed the petition for a writ of habeas corpus, the petitioner
was incarcerated. The respondent, the Commissioner of Correction, notes
that the petitioner has completed her sentence. The appeal, however, is not
moot because the petitioner was in custody at the time she filed the petition
and there are collateral consequences to her conviction. See Carpenter v.
Commissioner of Correction, 290 Conn. 107, 116 n.6, 961 A.2d 403 (2009).
5
Following the filing of the appellate brief of the petitioner, who is self-
represented on appeal, this court sua sponte ordered the petitioner to file a
supplemental brief addressing the threshold question of whether the habeas
court abused its discretion in denying certification to appeal. The petitioner
filed a supplemental brief addressing the issue.
6
The petitioner presented the scenario that, during the relevant time
frame, she pursued legal business regarding a resident of Kinsella Commons.
Green was an employee of Kinsella Commons who took a message from
the petitioner.
7
At oral argument before this court, the petitioner conceded that the
telephone records did not show that calls from the cell phone to jurors
necessarily overlapped with any call from the landline to Green.
8
The petitioner argues that her plea under the Alford doctrine was ren-
dered involuntary by Popkin’s failure to investigate, leaving her with no
choice but to plead guilty. The petitioner did not raise this claim on direct
appeal, or before the habeas court where a determination could have been
made if cause and prejudice existed so as to excuse procedural default. See
Taylor v. Commissioner of Correction, 94 Conn. App. 772, 784–86, 895 A.2d
246 (2006) (setting forth cause and prejudice standard in context of excusing
procedural default), rev’d on other grounds, 284 Conn. 433, 936 A.2d 611
(2007). This argument essentially is a restating of her ineffective assistance
of counsel claim. The habeas court discredited her testimony that she would
have gone to trial even if she had been aware at the time of the plea of all
the evidence adduced at the habeas trial. Furthermore, the habeas court
determined, in dicta, that the Alford plea was voluntary.
9
The petitioner also argues that it was improper for the same judge who
presided over the habeas trial to rule on the motion for certification to
appeal because ‘‘any judge who reviews her own work and certifies whether
it can be appealed is not a fair arbitrator,’’ thus, violating the due process
clause of the fourteenth amendment to the federal constitution. ‘‘Connecti-
cut’s appellate courts [generally] do not review judicial disqualification
claims raised for the first time on appeal because the parties, by failing to
object, are deemed to have consented to the participation of the allegedly
disqualified judge.’’ State v. Rizzo, 303 Conn. 71, 115, 31 A.3d 1094 (2011),
cert. denied, U.S. , 133 S. Ct. 133, 184 L. Ed. 2d 64 (2012). We will note,
however, that ‘‘[t]he United States Supreme Court consistently has held that
a judge’s failure to disqualify himself or herself will implicate the due process
clause only when the right to disqualification arises from actual bias on the
part of that judge.’’ (Emphasis omitted.) State v. Canales, 281 Conn. 572,
594, 916 A.2d 767 (2007). The petitioner makes no claim of actual bias; thus,
due process concerns are not implicated. See Francis v. Commissioner of
Correction, 142 Conn. App. 530, 546, 66 A.3d 501 (‘‘[I]t is well settled that
a judge’s involvement in more than one stage of a criminal case does not
per se create an appearance of partiality requiring disqualification. Indeed,
as our Supreme Court has stated: ‘[T]he law presumes that duly elected or
appointed judges, consistent with their oaths of office, will perform their
duties impartially,’ and ‘a judge’s participation in the preliminary stages of
a case, and the knowledge he or she thereby gains, will not ordinarily
preclude his or her continued participation in the same case thereafter.’ ’’),
cert. denied, 310 Conn. 921, 77 A.3d 141 (2013), quoting State v. Rizzo, supra,
119–20. We additionally note that General Statutes § 52-470 (g) specifically
provides that the petition for certification is to be presented to the judge
who tried the habeas corpus proceeding, unless that judge is unavailable.