Martin v. v. Commissioner of Correction , 148 Conn. App. 855 ( 2014 )

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MARTIN V.* v. COMMISSIONER
OF CORRECTION
(AC 34425)
Alvord, Keller and Bishop, Js.
Argued January 6—officially released March 25, 2014
(Appeal from Superior Court, judicial district of
Tolland, T. Santos, J.)
Robert J. McKay, assigned counsel, for the appel-
lant (petitioner).
Leon F. Dalbec, Jr., senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Marcia Pillsbury, assistant state’s attor-
ney, for the appellee (respondent).
Opinion
PER CURIAM. In this appeal from the habeas court’s
judgment denying his amended petition for a writ of
habeas corpus, the petitioner, Martin V., claims that the
court’s judgment was erroneous. We affirm the judg-
ment of the habeas court.
In the underlying criminal prosecution, the petitioner
was convicted, after jury trial, of two counts of sexual
assault in the first degree in violation of General Stat-
utes § 53a-70 (a) (2), one count of sexual assault in the
second degree in violation of General Statutes § 53a-71
(a) (1), and three counts of risk of injury to a child
in violation of General Statutes § 53-21 (a) (2). The
petitioner was sentenced to a total effective term of
sixty years imprisonment, execution suspended after
thirty-eight years, followed by twenty years of proba-
tion. On direct appeal to this court, the petitioner’s
conviction was affirmed. See State v. Martin V., 102
Conn. App. 381, 926 A.2d 49, cert. denied, 284 Conn.
911, 931 A.2d 933 (2007).
In an amended petition dated April 8, 2010, the peti-
tioner alleged that Attorney Norman Pattis, his trial
counsel, was ineffective for failing to conduct an ade-
quate pretrial investigation and for a variety of alleged
missteps during trial. The petitioner alleged, as well,
that Attorney John Williams, his pretrial counsel, was
ineffective for failing to conduct an adequate pretrial
investigation, and for failing to adequately explain and
respond to the state’s pretrial plea bargain offer. Finally,
the petitioner alleged that he was deprived of his right
to testify at trial in violation of his due process rights.1
At trial, the jury heard evidence from the victims that
they are the petitioner’s children and that, during the
relevant time periods, they lived in the same household
as the petitioner and other extended family members.
The victims testified that the petitioner sexually
assaulted them over the course of several years.
In the underlying criminal proceeding, the petitioner
was initially represented by Attorney Richard Mon-
tanez. In April, 2004, after Montanez had been criminally
charged in an unrelated case, Williams appeared for
the petitioner. Williams continued to represent the peti-
tioner throughout pretrial proceedings and up to the
eve of trial when Pattis took over his representation.
The decisional law governing our review of a habeas
petition premised on a claim of ineffective assistance
of counsel is well established. In order to prevail on
such a claim, a petitioner must prove that his counsel’s
performance was ineffective, that is, below an objective
standard for reasonableness. Smith v. Commissioner
of Correction, 148 Conn. App. 524, A.3d (2014).
The petitioner must also prove that he or she was preju-
diced by counsel’s deficient performance, that is, a peti-
tioner must prove that as a consequence of trial
counsel’s ineffectiveness, there is a reasonable proba-
bility that the outcome of the proceedings would have
been different had it not been for the deficient perfor-
mance. Strickland v. Washington, 466 U.S. 668, 687,
694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Johnson
v. Commissioner of Correction, 218 Conn. 403, 424–25,
589 A.2d 1214 (1991). Finally, in regard to the law that
guides our review, because a successful petitioner must
prove both that counsel was ineffective and that the
petitioner thereby suffered prejudice, a reviewing court
need not opine on both prongs if the court is satisfied
that the petitioner has not proven one of them. See,
e.g., Washington v. Commissioner of Correction, 287
Conn. 792, 835–36, 950 A.2d 1220 (2008) (when peti-
tioner fails to satisfy prejudice prong, there is no need
to evaluate claim under performance prong). Such is
the situation that this appeal presents.
As to Williams, the petitioner claims that he failed
to conduct an adequate pretrial investigation and also
that he failed to adequately handle pretrial plea negotia-
tions. In support of his first claim, the petitioner alleges
that Williams failed to interview family members who
lived in the same household where the petitioner and
the victims dwelt, failed to review records of the Depart-
ment of Children and Families (department) regarding
statements made by the victims to a forensic inter-
viewer, failed to translate and utilize a letter from one of
the victims to the petitioner that the petitioner believes
contained exculpatory information, and failed to con-
sult with an expert regarding the forensic interviews
of the victims conducted before trial and the cross-
examination of the victims at trial.
As to Williams’ representation regarding pretrial
negotiations, the petitioner claims that Williams failed
to adequately convey the state’s plea offer and to
explain its ramifications to him. Although Williams
denied many of these allegations at the habeas trial
and provided explanations contrary to the thrust of the
petitioner’s claims, we need not dwell on the petition-
er’s ineffectiveness claims regarding Williams because
they fail for want of prejudice. As to claims regarding
pretrial offers by the state, the record discloses that,
at one juncture before trial, the state had offered a plea
that, if accepted by the petitioner, would have resulted
in a lesser sentence than he received after trial. The
habeas court found, however, with reason, that the peti-
tioner had made it clear to Williams before trial that
he would not plead to any conduct suggestive that he
sexually assaulted the victims. In short, the court was
satisfied from the credible evidence that the petitioner
did not prove that he would have accepted the state’s
pretrial plea offer because he was unwilling voluntarily
to accept any period of incarceration. The record amply
supports the court’s conclusions in this regard.
We conclude, similarly, as to the petitioner’s various
claims regarding Williams’ representation of the peti-
tioner before trial, that the court correctly determined
that the petitioner failed to demonstrate that he was
prejudiced by any of Williams’ alleged deficient perfor-
mance. On the basis of its assessment of the credibility
and interest of the family members who testified at the
habeas trial, the court concluded that their testimony,
if it had been solicited and offered in the underlying
trial, would not have been helpful to the petitioner. The
habeas court found, as well, that the petitioner failed
to demonstrate in what manner any further investiga-
tion by Williams or a review of the victims’ department
records would have been helpful to the petitioner in the
underlying criminal proceedings. Finally, as to Williams,
the court found that the letter written by one of the
victims to the petitioner was not exculpatory as claimed
by the petitioner.
Similarly, the habeas court found that the petitioner
had failed to demonstrate that he was prejudiced by
the manner in which Pattis represented him. As noted,
the petitioner claimed that Pattis failed to conduct an
adequate pretrial investigation and that he was ineffec-
tive, in myriad ways, at trial. Specifically, the petitioner
claimed that Pattis failed to review the victims’ state-
ments to the forensic interviewer and to utilize them
in his defense, failed to adequately cross-examine the
victims, failed to interview witnesses and to impeach
their testimony, failed to translate and utilize a letter
from one of the victims to the petitioner, failed to con-
sult and present the testimony of a medical expert,
failed to present an affirmative defense, and failed to
adequately advise the petitioner regarding his right to
testify at trial in order to ensure that he made a knowing
and voluntary decision not to do so.
The habeas court rejected each of these claims
regarding Pattis. As to Pattis’ alleged failure to interview
and call to testify family members who lived in the
same household as the petitioner and the victims, the
habeas court concluded, from their habeas testimony,
that their participation in the criminal trial would not
have assisted the petitioner because they lacked credi-
bility, they were not disinterested, and their testimony
did not provide an alibi for the petitioner. In short, the
court determined that calling these witnesses would
not have been helpful to the petitioner’s defense. As to
Pattis’ treatment of the victims’ department records,
the victims’ cross-examinations and their pretrial inter-
views, the court concluded, with support from the
record, that Pattis’ decisions regarding how to deal with
the victims as witnesses were reasoned and informed.
Nothing in the record suggests that the court’s conclu-
sion in this regard was faulty. Additionally, as to Pattis,
the habeas court found that the petitioner failed to
introduce any credible or persuasive evidence that con-
sultation by Pattis with any expert would have been
useful in his treatment of the victims as witnesses and
accusers. Finally, as to the petitioner’s right to testify,
the court noted the testimony of Pattis that he fully
discussed this with the petitioner and recommended
that the petitioner not testify because he thought that
the petitioner’s testimony at trial, subject to cross-
examination, would likely be detrimental to the defense.
The court determined that the petitioner was fully
aware of his right to testify and that he voluntarily
and knowingly waived that right following the court’s
canvass. The record amply supports the habeas court’s
conclusions as to each of these claims.
The judgment is affirmed.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to use the petitioner’s full name or to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
1
In response to the petitioner’s due process claim, the respondent, the
Commissioner of Correction, raised procedural default as to the allegations
directed at the trial court. An allegation of trial court error is subject to
procedural default unless cause and prejudice are both alleged and shown.
Moody v. Commissioner of Correction, 127 Conn. App. 293, 299, 14 A.3d
408 (‘‘[T]he existence of cause for a procedural default must ordinarily turn
on whether the [petitioner] can show that some objective factor external to
the defense impeded counsel’s efforts to comply with the [s]tate’s procedural
rule. . . . A court will not reach the merits of the habeas claim when the
petitioner fails to make the required showing.’’ [Internal quotation marks
omitted.]), cert. denied, 300 Conn. 943, 17 A.3d 478 (2011). In addressing
the petitioner’s due process claim, the habeas court determined that the
petitioner failed to allege and prove the required cause and prejudice. The
habeas court also found that, after reviewing the trial court’s canvass of
the petitioner at trial, the petitioner was well aware of his right to testify.
Therefore, the habeas court determined that any allegation of trial court
error, even if not procedurally defaulted, was without merit. Nonetheless,
the habeas court’s determination as to this claim has not been challenged
by the petitioner on appeal.