Williams v. Commissioner of Correction ( 2024 )

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LESLIE WILLIAMS v. COMMISSIONER
OF CORRECTION
(AC 45737)
Elgo, Clark and Sheldon, Js.
Syllabus
The petitioner, who had been convicted, on pleas of guilty, of the crimes
of capital felony, assault in the first degree and attempt to commit
escape from custody, sought a writ of habeas corpus, claiming that his
trial counsel, L and S, had rendered ineffective assistance. The petitioner,
armed with a handgun, had entered a residence occupied by two women
where he shot one of the women and sexually assaulted the other before
driving her in her vehicle to a secluded location where he shot and
killed her. The petitioner thereafter gave the police a detailed, written
confession admitting his participation in the crimes. After investigating
the viability of various defenses, including a potential mental disease
or defect defense, and concluding that the success of a motion to sup-
press the petitioner’s confession was highly speculative, L and S advised
the petitioner to enter into an agreement with the state, under which
he would plead guilty and receive a sentence of life imprisonment with-
out the possibility of release in exchange for the state’s agreement not
to pursue the death penalty against him. The court rendered judgment
denying the habeas petition. The court concluded that the petitioner
had failed to prove that his counsel had rendered deficient performance
related to the motion to suppress claim or by failing to investigate and
pursue a mental disease or defect defense. The court further held that
the petitioner had failed to establish that he was prejudiced by demon-
strating that he would have rejected the plea agreement and gone to
trial had he been advised regarding the motion to suppress or the poten-
tial mental disease or defect defense. The court thereafter granted the
petitioner’s petition for certification to appeal, and the petitioner
appealed to this court. Held:
1. The petitioner could not prevail on his claim that the habeas court improp-
erly determined that L and S did not render ineffective assistance:
a. The habeas court correctly determined that the petitioner failed to
prove that he was prejudiced by any purported failure of L and S to advise
him properly regarding a possible motion to suppress his confession:
the petitioner presented no evidence that he was prejudiced, and the
court based its determination on the undisputed factual circumstances
of the petitioner’s case, in which he faced a possible death sentence at
the time he considered whether to plead guilty to crimes for which there
was a surviving eyewitness, significant physical evidence and little hope
of being able to raise reasonable doubt because of an eyewitness identifi-
cation error or by asserting that he had been wrongly accused; moreover,
the court credited L’s testimony that it would have been very difficult
to personalize the petitioner to a jury in light of the facts of the case
and the petitioner’s criminal history, and that, even if L and S had moved
to suppress the confession, the success of such a motion was highly
speculative.
b. L and S did not render deficient performance, as the petitioner claimed,
by failing to investigate and inform him about a potential mental disease
or defect defense: L and S had no duty to inform the petitioner of a
possible mental disease or defect defense because it was not established
as a viable defense in the circumstances of the petitioner’s case, as the
court credited the testimony of L and S that they had investigated the
petitioner’s mental health and saw nothing to indicate that he was incom-
petent or that he suffered from a mental disease or defect; moreover, it
was sound trial strategy for L and S to negotiate a guilty plea for a
sentence of life imprisonment in exchange for the state’s removal of the
possibility that the death penalty would be imposed, and, although the
petitioner claimed that he was unable to make informed decisions about
the objectives of his counsel’s representation because they had not prop-
erly informed him about the mental disease or defect defense, he provided
no legal authority for the premise that counsel is required to fully inform
a defendant of a factually unsupported defense that was never considered
as a serious option except as a last resort if the state persisted in pursuing
the death penalty.
2. This court did not need to reach the petitioner’s claim that the habeas
court abused its discretion when it sustained an objection by the respon-
dent, the Commissioner of Correction, that prevented the petitioner
from testifying that he would have rejected the plea agreement and
insisted on going to trial had L and S more fully informed him of the
possibility of raising a mental disease or defect defense; although the
petitioner contended that the habeas court’s evidentiary ruling was harm-
ful because it left him without a way to establish that he was prejudiced
by his counsel’s performance, there was no need for this court to adjudi-
cate that claim, as the habeas court already had properly concluded
that the petitioner failed to establish that L and S rendered deficient
performance with respect to the pursuit of a mental disease or defect
defense, this court having repeatedly explained that ineffective assis-
tance claims may be resolved under either the performance prong or
the prejudice prong of the test for ineffective assistance of counsel.
Argued October 25, 2023—officially released February 13, 2024
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, M. Murphy, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
Matthew C. Eagan, assigned counsel, for the appel-
lant (petitioner).
Melissa E. Patterson, senior assistant state’s attor-
ney, with whom, on the brief, were Christian M. Wat-
son, state’s attorney, and Angela R. Macchiarulo, super-
visory assistant state’s attorney, for the appellee
(respondent).
Opinion
ELGO, J. The petitioner, Leslie Williams, appeals from
the judgment of the habeas court denying his petition
for a writ of habeas corpus alleging ineffective assis-
tance of trial counsel. The petitioner claims that he
relied on the advice of counsel when he pleaded guilty
to capital felony and other charges, accepting a total
effective sentence of life imprisonment without the pos-
sibility of release in exchange for the state’s agreeing
to not seek the death penalty against him.1 On appeal,
the petitioner contends that the court (1) improperly
rejected his claims that counsel rendered ineffective
assistance by failing to move to suppress his confession
and failing to investigate or properly advise him of a
potential mental disease or defect defense, and (2)
abused its discretion in excluding his testimony that he
would have rejected the plea agreement and insisted
on going to trial if his counsel had properly informed
him of the potential defense to his pending charges.
We affirm the judgment of the habeas court.
The following facts and procedural history, as found
by the habeas court or as undisputed by the parties,
are relevant to our resolution of the petitioner’s claims.
On the morning of March 30, 2008, the petitioner entered
a New Britain residence occupied by the owner, L, and
her friend, M.2 The petitioner brandished a handgun,
demanded valuables, and forced the two women into
the basement where he shot L in the head. L survived
the shooting but pretended to be dead on the basement
floor. The petitioner sexually assaulted M before
abducting her from the residence and driving her in her
vehicle to a secluded location in Bristol. When M exited
the vehicle, the petitioner shot and killed her, then
pushed her body over the edge of the road. At the
residence, after the petitioner and M had left, L was
able to leave the basement and make it to a neighbor’s
home. The neighbor called the police, and the police
issued a notice to be on the lookout for M’s vehicle.
Later that day, the police spotted the petitioner in M’s
vehicle, and a high-speed chase ensued, culminating in
the petitioner’s apprehension. While the petitioner was
in custody following his apprehension, the police ques-
tioned him about what had happened before his appre-
hension, including the events at L’s residence and their
aftermath. Although the petitioner initially denied any
knowledge of those events, he eventually provided and
signed a seven page confession admitting his participa-
tion in those events in addition to telling authorities
where they could find M’s body.
On March 31, 2008, the petitioner was charged with
capital felony in violation of General Statutes (Rev. to
2007) § 53a-54b (6)3 and assault in the first degree in
violation of General Statutes § 53a-59 (a) (5).
On December 8, 2011, pursuant to a plea agreement
under which the petitioner pleaded guilty and accepted
a sentence of life imprisonment without the possibility
of release in exchange for the state’s agreement not to
pursue the death penalty against him, the petitioner
pleaded guilty to capital felony in violation of § 53a-54b
(6), assault in the first degree in violation of § 53a-59
(a) (5), and attempt to commit escape from custody
in violation of General Statutes § 53a-49 and General
Statutes (Rev. to 2011) § 53a-171.4 Prior to accepting
the guilty pleas, the court canvassed the petitioner,
asking in relevant part, whether the recitation of facts
presented by the prosecutor was correct and he was
pleading guilty due to actual guilt; whether he had ade-
quate time to meet with counsel before pleading guilty
and was satisfied with the advice of counsel regarding
his guilty pleas; whether counsel had explained to him
that the state had the burden of proving the elements
of capital felony, assault in the first degree, and attempt
to escape from custody beyond a reasonable doubt; and
whether he understood that, by pleading guilty, he was
giving up the ability to present any defenses, including
‘‘a mental state defense’’ if his counsel thought it would
be helpful. The court additionally asked whether the
petitioner understood that, if the case proceeded to
trial and he was found guilty, a jury of twelve would
have to vote unanimously in favor of the death penalty
or a three judge panel would have to vote at least two
to one in favor of that penalty before it could be imposed
against him; and whether avoiding the death penalty
was a reason he was entering his pleas of guilty. The
petitioner answered in the affirmative to each of the
court’s inquiries.
During the plea canvass, the petitioner’s counsel,
Attorneys R. Bruce Lorenzen and David G. E. Smith,
denied that any issues had arisen involving the petition-
er’s competence or mental disease when asked directly
by the court. Upon completing the canvass, the court
found that the guilty pleas had been made knowingly,
voluntarily, and intelligently, with the effective assis-
tance of counsel. The court then sentenced the peti-
tioner to life imprisonment without the possibility of
release for capital felony pursuant to § 53a-54b (6) and
imposed concurrent sentences for the assault and
attempted escape crimes. The petitioner did not file a
direct appeal from his convictions.
On March 9, 2021, the petitioner filed an amended
petition for a writ of habeas corpus, alleging that trial
counsel had rendered ineffective assistance by (1)
‘‘[f]ailing to advise [him] regarding the possibility that
he could move to suppress’’ his confession and failing
to move to suppress the confession, and (2) ‘‘[f]ailing
to advise [him] that [he] could . . . raise a mental dis-
ease or defect defense [in] the guilt phase of his capital
felony trial’’ and allowing him to plead guilty without
advising him of the same.5
A habeas trial was held on March 9, 2022. The peti-
tioner provided exhibits to the court in the form of
transcripts from the plea and sentencing hearings, a
mitigation outline, which had been prepared by trial
counsel and their capital defense team, and the court
clerk’s file from the underlying criminal case. The court
heard testimony from the petitioner and the petitioner’s
criminal trial counsel, Lorenzen and Smith. No other
witnesses were presented. Lorenzen and Smith testified
that, together, they acted as the petitioner’s trial counsel
at all relevant times for the purpose of the habeas peti-
tion.6 Lorenzen described his role in the underlying case
as that of focusing on the guilt phase of the trial, while
Smith, as a member of the Office of the Chief Public
Defender’s capital defense unit, had the role of focusing
on the development of mitigating evidence for the pen-
alty phase of the trial. Lorenzen stated, however, that
mitigating evidence ‘‘would be useful either in dis-
cussing a potential plea with the state or, if the case
did come to trial, in terms of arguing to the jury that
a life sentence would be warranted.’’
In its June 29, 2022 memorandum of decision, the
habeas court found that the petitioner had failed to
prove that his counsel rendered deficient performance
as to the motion to suppress claim or the mental disease
or defect defense claim. The court further held that,
given ‘‘the factual circumstances in this case,’’ the peti-
tioner had ‘‘failed to prove that he was prejudiced’’ by
demonstrating that he would have rejected the plea
agreement and gone to trial had he been advised regard-
ing the motion to suppress or the potential mental dis-
ease or defect defense. The court thus denied the peti-
tion for a writ of habeas corpus. It thereafter granted
the petitioner’s petition for certification to appeal, and
this appeal followed.
I
The petitioner first claims that the court improperly
denied his ineffective assistance of counsel claims. We
disagree.
In considering the merits of that claim, we first set
forth the well settled standard of review in a habeas
corpus proceeding. ‘‘When reviewing the decision of a
habeas court, the facts found by the habeas court may
not be disturbed unless the findings were clearly errone-
ous. . . . The issue, however, of [w]hether the repre-
sentation [that] a defendant received at trial was consti-
tutionally inadequate is a mixed question of law and
fact. . . . As such, that question requires plenary
review by this court unfettered by the clearly erroneous
standard. . . . Under the [test articulated in Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), and Hill v. Lockhart, 474 U.S. 52, 59,
106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)], when a petitioner
alleges ineffective assistance of counsel, he must estab-
lish that (1) counsel’s representation fell below an
objective standard of reasonableness, and (2) counsel’s
deficient performance prejudiced the defense because
there was a reasonable probability that the outcome of
the proceedings would have been different had it not
been for the deficient performance. . . . Furthermore,
because a successful petitioner must satisfy both
prongs of the [Strickland-Hill] test, failure to satisfy
either prong is fatal to a habeas petition. . . .
‘‘To satisfy the first prong, that his counsel’s perfor-
mance was deficient, the petitioner must establish that
his counsel made errors so serious that [counsel] was
not functioning as the counsel guaranteed the [peti-
tioner] by the [s]ixth [a]mendment. . . . The petitioner
must thus show that counsel’s representation fell below
an objective standard of reasonableness considering all
of the circumstances. . . . [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. . . . Further-
more, the right to counsel is not the right to perfect
counsel.’’ (Citations omitted; internal quotation marks
omitted.) Diaz v. Commissioner of Correction, 214
Conn. App. 199, 212–13, 280 A.3d 526, cert. denied, 345
Conn. 967, 285 A.3d 736 (2022).
‘‘In the context of a habeas petition claiming ineffec-
tive assistance of counsel where the petitioner pleaded
guilty, a petitioner satisfies the prejudice prong of the
[Strickland-Hill] test if he reasonably demonstrates
that, but for the conduct of counsel, the petitioner
would not have pleaded guilty. . . . However, a peti-
tioner must make more than a bare allegation that he
would have pleaded differently to demonstrate preju-
dice . . . because such a statement suffers from obvi-
ous credibility problems and must be evaluated in light
of the circumstances the defendant would have faced
at the time of his decision.’’ (Citations omitted; internal
quotation marks omitted.) Foster v. Commissioner of
Correction, 217 Conn. App. 658, 669, 289 A.3d 1206,
cert. denied, 348 Conn. 917, 303 A.3d 1193 (2023).
It is well settled that ‘‘courts may decide against a
petitioner on either prong [of the Strickland-Hill test],
whichever is easier. . . . [T]he petitioner’s failure to
prove either [the performance prong or the prejudice
prong] is fatal to a habeas petition. . . . [A] court need
not determine whether counsel’s performance was defi-
cient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies. . . .
If it is easier to dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice . . . that
course should be followed.’’ (Citations omitted; internal
quotation marks omitted.) Soto v. Commissioner of
Correction, 215 Conn. App. 113, 120, 281 A.3d 1189(2022).
A
The petitioner’s first claim of ineffective assistance
of counsel stems from the detailed confession that the
petitioner gave to the New Britain police after he was
apprehended. The petitioner claims that counsel was
deficient because he was not properly advised that he
could move to suppress the statement, and if he had
been properly advised, he would not have pleaded guilty
and instead would have insisted on going to trial. We
are not persuaded. In particular, we agree with the
habeas court that the petitioner failed to prove that he
was prejudiced by any purported failure by his trial
counsel to advise him regarding a possible motion to
suppress.7
The following additional facts are relevant to resolv-
ing this claim. After the petitioner’s arrest and prior to
the appointment of counsel, the petitioner provided a
detailed confession to the police. After the petitioner
read his confession, he made and initialed eighteen
separate corrections in it.
Both Lorenzen and Smith testified that their primary
objective in the underlying case was to prevent the
petitioner from receiving the death penalty, but the
ultimate decision of whether to plead guilty was left to
the petitioner. The habeas court noted that ‘‘the state
had an extremely strong case against the petitioner,’’
which included not just the confession, but also the
identification of the petitioner by the surviving victim,
physical evidence linking the petitioner to the crimes,
and the fact that the petitioner was apprehended while
driving M’s vehicle. Lorenzen stated that he and Smith
would not have ‘‘been able to argue reasonable doubt,
or that it was a question of identification, or the wrong
person had been accused.’’ Smith testified that, had the
case gone to trial, the petitioner’s prior criminal history
would likely have been disclosed, which included rob-
bery and sale of narcotics, both felonies, as well as the
fact that the petitioner had been released from prison
less than three weeks before the crimes at issue after
having served a sentence for a prior conviction of sexual
assault of a five year old child. Lorenzen stated that it
would ‘‘be very difficult to personalize [the petitioner]
to a jury’’ given the facts counsel had to work with.
At the habeas trial, the petitioner testified that he
had told his counsel to suppress the confession, but they
told him, ‘‘we’re not getting it.’’ Lorenzen acknowledged
that the initialed corrections the petitioner made to the
confession would make it difficult to argue that the
confession had not been made freely and voluntarily,
or that the petitioner had been suffering under some
qualifying disability or burden when he made his confes-
sion. Lorenzen stated that it was ‘‘highly speculative’’
as to whether the petitioner would have met the requi-
site legal standard to have the statement suppressed
and that he ‘‘would not have been optimistic’’ about the
success of the motion. If the case had proceeded to trial,
however, Lorenzen said, it would have been standard
strategy in a death penalty case to ‘‘litigate as many
issues as possible, including suppression.’’ Ultimately,
counsel were able to secure a plea agreement for a life
sentence in exchange for the state’s agreement not to
pursue the death penalty.
In its memorandum of decision, the court concluded,
inter alia, that the petitioner had ‘‘failed to prove that
he was prejudiced . . . by demonstrating that he
would have gone to trial had trial counsel filed or
advised him as to filing the motion to suppress given
the factual circumstances in this case.’’ On our review
of the record, we agree.
‘‘[A] petitioner must make more than a bare allegation
that he would have pleaded differently to demonstrate
prejudice . . . because such a statement suffers from
obvious credibility problems and must be evaluated in
light of the circumstances the defendant would have
faced at the time of his decision.’’ (Citation omitted;
internal quotation marks omitted.) Foster v. Commis-
sioner of Correction, supra, 217 Conn. App. 669. ‘‘In
evaluating the credibility of such an assertion, the
strength of the state’s case is often the best evidence
of whether a defendant in fact would have changed his
plea and insisted on going to trial, in light of newly
discovered evidence or a defense strategy that was not
previously contemplated. . . . Likewise, the credibil-
ity of the petitioner’s after the fact insistence that he
would have gone to trial should be assessed in light of
the likely risks that pursuing that course would have
entailed.’’ (Internal quotation marks omitted.) Colon v.
Commissioner of Correction, 179 Conn. App. 30, 36–37,
177 A.3d 1162, cert. denied, 328 Conn. 907, 178 A.3d 390(2018). Here, beyond the allegation that the petitioner
would have pleaded differently, the petitioner pre-
sented no evidence relative to the prejudice prong of
the Strickland-Hill test, and the court considered ‘‘the
factual circumstances in this case’’ as its basis for con-
cluding that the petitioner was unable to demonstrate
prejudice.8
As previously stated, the factual circumstances facing
the petitioner at the time he considered whether to
plead guilty included a possible death sentence for
crimes in which there was a surviving eyewitness, sig-
nificant physical evidence, and little hope of being able
to raise reasonable doubt via an eyewitness identifica-
tion error or asserting that the petitioner had been
wrongly accused. Lorenzen stated that it would ‘‘be
very difficult to personalize [the petitioner] to a jury’’
given the facts of the case and the petitioner’s serious
criminal history, and, even if counsel had moved to
suppress the confession, the success of a suppression
motion would have been highly speculative at best. In
its memorandum of decision, the court credited that
testimony. See, e.g., Collins v. Commissioner of Correc-
tion, 202 Conn. App. 789, 812, 246 A.3d 1047 (habeas
court is sole arbiter of credibility of witnesses and
weight to be given to their testimony), cert. denied, 336
Conn. 931, 248 A.3d 1 (2021). In light of that testimony
and the uncontroverted factual circumstances reflected
in the record before us, we conclude that the petitioner
failed to satisfy his burden under the prejudice prong
of the Strickland-Hill test.
B
The petitioner’s second claim of ineffective assis-
tance of counsel is related to a possible mental disease
or defect defense that counsel briefly considered as
part of their mitigation plan. The petitioner claims that
counsel rendered deficient performance because they
‘‘fail[ed] to investigate a potential mental disease or
defect defense and . . . fail[ed] to advise [him] of such
a defense before allowing him to plead guilty.’’ We do
not agree.
The following legal principles and additional facts
are relevant to this claim. The mental disease or defect
defense is governed by General Statutes § 53a-13 (a),
which provides that ‘‘it shall be an affirmative defense
that the defendant, at the time the defendant committed
the proscribed act or acts, lacked substantial capacity,
as a result of mental disease or defect, either to appreci-
ate the wrongfulness of his conduct or to control his
conduct within the requirements of the law.’’
The petitioner first claims that counsel ‘‘fail[ed] to
investigate a potential mental disease or defect defense
. . . .’’ At the habeas trial, Lorenzen testified that he
was familiar with the mental disease or defect defense
and had ‘‘utilized the defense on behalf of other clients,’’
but, in the case of the petitioner, it ‘‘was certainly con-
sidered’’ but was ‘‘quickly discounted’’ and ‘‘never . . .
became a serious option’’ because ‘‘it was not realistic.’’
He further stated that being an experienced public
defender afforded him ‘‘pretty good practical training’’
when working with clients who ‘‘struggle with mental
health or substance abuse,’’ but the petitioner ‘‘did not,
in any way, strike [him] as being mentally ill’’ or incom-
petent, which is why Lorenzen ‘‘saw no reason to move
for an evaluation based on mental disease or defect.’’
Lorenzen stated that, in his opinion, it was not credible
for the petitioner to enter a plea of not guilty by reason
of mental disease or defect, as he did not think the
petitioner ‘‘fit the parameters’’ for such a plea.
Smith testified in a similar fashion, indicating that he
had thirty years of professional experience working on
capital cases with ‘‘clients [where] mental health and
competency is a very fluid concept . . . .’’ Smith
opined that, in the petitioner’s case, he did not have a
reason to believe it would be appropriate to request a
competency examination. Smith stated that, rather than
discounting the mental disease or defect defense, ‘‘it
was more of an issue of back burnering it, but if . . .
we had nothing else and we needed to go forward, we
would do that,’’ making clear that ‘‘saving the life of
our client is always . . . the primary goal.’’
The record contains a mitigation outline that Smith
created with his capital mitigation team. The outline
mentions positron emission tomography and magnetic
resonance imaging brain scans that the petitioner
underwent while in custody, and Smith testified that
the scans showed ‘‘abnormalities’’ that could be attrib-
uted to potential exposure to lead paint or poor prenatal
care. Smith acknowledged, however, that, even with
those scans, ‘‘a very qualified expert may say that the
abnormality has no . . . effect on impulse control [or]
cognitive learning . . . .’’ When asked whether the
items contained in the mitigation outline were ever
evaluated in the context of forming a mental disease
or defect defense, Smith responded that he ‘‘always
evaluate[s] information in that context’’ and then
‘‘rank[s]’’ potential defenses. Smith stated that, without
other defenses such as reasonable doubt, being wrongly
accused, or an alibi, ‘‘if death had remained on the table
and we were going to go to trial . . . then certainly the
mental disease or defect . . . would have simmered to
the top.’’ Smith further testified that, even ‘‘after the
testing that was done and all of the mitigation avenues
[were] explored,’’ it was his and Lorenzen’s ‘‘profes-
sional opinion that, if we could get the death penalty
off the table, legally, that would be the best route on
behalf of [the petitioner], but the actual decision was
made by [the petitioner], not by us.’’
The petitioner additionally claims that counsel ren-
dered deficient performance by ‘‘failing to advise the
petitioner of [the possibility of a mental disease or
defect] defense before allowing him to plead guilty.’’
The petitioner testified that counsel ‘‘might have . . .
mentioned [the defense] in passing, but we never sat
down and discussed it as . . . a strategy’’ and that
counsel never discussed the elements of the mental
disease or defect defense with him. Lorenzen testified
that he ‘‘did cover the matter’’ of why the defense was
‘‘not a serious consideration’’ and kept the petitioner
apprised of what he believed were the strategies and
theories that best served the petitioner’s interests.
Smith testified similarly that he kept the petitioner ‘‘up
to date’’ with the theories, strategies, and investigations
into the case.
In its memorandum of decision, the court concluded
that ‘‘the petitioner failed to sustain his burden of prov-
ing that trial counsel’s performance was deficient in
failing to investigate and advise the petitioner as to a
potential mental disease or defect defense.’’ The court
found that ‘‘the petitioner’s mental health was investi-
gated, and trial counsel credibly testified that they saw
nothing to indicate that the petitioner was incompetent
or suffered from a mental disease or defect.’’
Under the performance prong of the Strickland-Hill
test, there is ‘‘a strong presumption that counsel’s con-
duct falls within the wide range of reasonable profes-
sional assistance; that is, the [petitioner] must over-
come the presumption that, under the circumstances,
the challenged action might be considered sound trial
strategy.’’ (Internal quotation marks omitted.) Diaz v.
Commissioner of Correction, supra, 214 Conn. App.
212–13. The petitioner concedes that ‘‘legitimate strat-
egy decisions made by trial counsel are all but immune
from challenge on appeal.’’ Here, counsel’s legitimate
strategy, after evaluating the viability of possible
defenses, was to negotiate a guilty plea with the state
for a sentence of life imprisonment in exchange for
removing the possibility that the death penalty would
be imposed. Because this represented a sound trial
strategy in the circumstances of this case, counseling
the petitioner to accept the plea deal did not constitute
deficient performance of counsel.
Nevertheless, the petitioner contends that, because
he was not ‘‘properly informed’’ about the possible men-
tal disease or defect defense, his counsel provided inef-
fective assistance resulting in the petitioner’s inability
to ‘‘make informed decisions regarding the objectives of
the representation.’’ Yet the petitioner has not provided,
nor can we find, legal authority for the premise that
counsel is required to fully inform a defendant of a
defense that was factually unsupported and never con-
sidered as a serious option, except possibly as a last
resort, if the state persisted in pursuing the death pen-
alty.
In this regard, we note that the United States Court
of Appeals for the Second Circuit, in a case in which
a possible defense ‘‘had little chance of success’’ and
presented a ‘‘high likelihood that the . . . defense . . .
would have exposed [the petitioner] to significant addi-
tional punishment,’’ concluded that ‘‘counsel served
adequately during the plea negotiations because he had
no duty to disclose the . . . defense under [those] cir-
cumstances.’’ Panuccio v. Kelly, 927 F.2d 106, 109–10
(2d Cir. 1991); see also Jamison v. Senkowski, 204 F.
Supp. 2d 610, 613 (S.D.N.Y. 2002) (representation does
not fall below objective standard of reasonableness
when counsel fails to inform petitioner of defense that
is not, in fact, viable). Here, there was no duty to inform
the petitioner of the possible mental disease or defect
defense because it was not established as a viable
defense in the circumstances of his case. The court
determined that ‘‘trial counsel credibly testified that
they saw nothing to indicate that the petitioner was
incompetent or suffered from a mental disease or
defect.’’ This court will not revisit that credibility deter-
mination on appeal. See, e.g., Barlow v. Commissioner
of Correction, 343 Conn. 347, 368, 273 A.3d 380 (2022)
(‘‘we will not second-guess the habeas court’s credibil-
ity determination’’).
In light of the foregoing, we conclude that counsel
did not render deficient performance in failing to inves-
tigate and inform the petitioner of a potential mental
disease or defect defense.
II
The petitioner’s last claim is that the court abused its
discretion by sustaining an objection by the respondent,
the Commissioner of Correction, during the petitioner’s
testimony, which effectively prevented the petitioner
from testifying that he would have rejected the plea
agreement and insisted on going to trial if his counsel
had more fully informed him of the possibility of raising
a mental disease or defect defense. The petitioner
claims that this evidentiary ruling was harmful because
it left him without a way to establish prejudice, the
second prong of the Strickland-Hill test, with respect
to his ineffective assistance of counsel claim concerning
that defense.
We need not reach this claim in light of our conclusion
in part I B of this opinion. This court has repeatedly
explained that a court may resolve ineffective assis-
tance of counsel claims on either the performance
prong or the prejudice prong. See, e.g., Soto v. Commis-
sioner of Correction, supra, 215 Conn. App. 120.
Because we have determined that the habeas court
properly concluded that the petitioner’s ineffective
assistance of counsel claim failed under the perfor-
mance prong of the Strickland-Hill test, we need not
reach the petitioner’s evidentiary claim as it relates to
the prejudice prong of that test. See, e.g., Quint v.
Commissioner of Correction, 211 Conn. App. 27, 36
n.7, 271 A.3d 681 (‘‘[i]n light of our determination that
the petitioner failed to establish that [counsel’s] perfor-
mance was deficient, we need not address the prejudice
prong’’), cert. denied, 343 Conn. 922, 275 A.3d 211(2022); Grover v. Commissioner of Correction, 183
Conn. App. 804, 818 n.7, 194 A.3d 316 (‘‘[w]hen a peti-
tioner has failed to meet the performance prong of
Strickland, we need not reach the issue of prejudice’’
(internal quotation marks omitted)), cert. denied, 330
Conn. 933, 194 A.3d 1196 (2018).
The judgment is affirmed.
In this opinion the other judges concurred.
1
Subsequent to the petitioner’s conviction of capital felony, our Supreme
Court abolished the death penalty in State v. Santiago, 318 Conn. 1, 139–40,
122 A.3d 1 (2015).
2
In accordance with our policy of protecting the privacy interests of the
victims of sexual assault, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
3
Section 53a-54b was amended by No. 12-5, § 1, of the 2012 Public Acts
to substitute ‘‘murder with special circumstances’’ for ‘‘capital felony.’’ See
State v. McCleese, 333 Conn. 378, 425 n.24, 215 A.3d 1154 (2019). We refer
to § 53a-54b as capital felony because that is the nomenclature employed
by the parties and the habeas court. All references to § 53a-54b in this
opinion are to the 2007 revision of the statute.
4
The petitioner had been charged in a separate docket with attempt to
commit escape from custody in 2011. The petitioner did not challenge that
conviction in the habeas court or on appeal to this court.
5
The petitioner’s amended petition for a writ of habeas corpus additionally
alleged a due process violation, claiming that his confession was not made
voluntarily, knowingly, or intelligently due to a then existing mental disease
or defect. The habeas court rejected the petitioner’s claim, finding that ‘‘[he
had] not prove[d] that he suffered from a mental disease or defect.’’ The
petitioner does not contest that ruling on appeal.
6
For ease of discussion, we refer in this opinion to Lorenzen and Smith
together as counsel and individually by name.
7
In light of this conclusion, we need not consider the petitioner’s claim
that counsel’s performance was deficient. See part II of this opinion.
8
To demonstrate prejudice under the Strickland-Hill test, it is common
for petitioners to testify what their course of action would have been in the
absence of the purported deficient performance of counsel. See, e.g., Soto v.
Commissioner of Correction, supra, 215 Conn. App. 123 (petitioner testified
regarding how his actions would have differed if he had received effective
assistance of counsel); Rogers v. Commissioner of Correction, 194 Conn.
App. 339, 348, 221 A.3d 81 (2019) (same); Kellman v. Commissioner of
Correction, 178 Conn. App. 63, 73, 174 A.3d 206 (2017) (same).
The record reflects that the petitioner never testified as to what his course
of action would have been in the absence of the purported deficient perfor-
mance. When the petitioner was asked during the habeas trial what his
course of action would have been ‘‘had [his] attorneys moved to suppress
[his] statement at any point prior to [his] guilty plea,’’ the court sustained the
objection by counsel for the respondent, the Commissioner of Correction,
on the grounds that the question called for speculation and that it was a
compound question. The petitioner has not challenged that evidentiary ruling
in this appeal.