Grover v. Commissioner of Correction ( 2018 )

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JOHN GROVER v. COMMISSIONER
OF CORRECTION
(AC 39879)
DiPentima, C. J., and Keller and Prescott, Js.
Syllabus
The petitioner, who had been convicted on a guilty plea of the crime of risk
of injury to a child, sought a writ of habeas corpus, claiming that he
was denied his constitutional right to counsel free from conflicts of
interest and that his trial counsel provided ineffective assistance. Specifi-
cally, the petitioner claimed that his trial counsel had a financial incen-
tive to convince the petitioner to accept a plea because the petitioner
was unable to pay his trial counsel’s trial retainer in full, and that his
trial counsel failed to retain or request funding to retain a forensic mental
health professional and to identify innocent alternative explanations
for the allegations against the petitioner. The habeas court rendered
judgment denying the habeas petition and, thereafter, denied the petition
for certification to appeal, and the petitioner appealed to this court. Held:
1. The habeas court did not abuse its discretion in denying the petition for
certification to appeal with respect to the claim that the petitioner was
denied his constitutional right to counsel free from conflicts of interest:
the trial fee arrangement was not a flat fee, there were no findings to
suggest that trial counsel abandoned his obligations to the petitioner
to focus on other more lucrative endeavors, especially given that trial
counsel was successful in securing a favorable plea arrangement that
dramatically reduced the petitioner’s potential prison sentence and his
time on the sex offender registry, and the mere fact that trial counsel
faced the possibility of not being paid fully in the event the case went
to trial did not compel the inference that his advice was not consonant
with the petitioner’s interests; moreover, the petitioner’s reliance on
certain case law holding that indigent, self-represented defendants have
a constitutional right to expert or investigative assistance reasonably
necessary to their defense, which was not decided until after the peti-
tioner pleaded guilty and was sentenced, was unavailing, as trial counsel
did not act unreasonably by failing to request an expert witness in
accordance with precedent that did not exist at the time of the represen-
tation, and there having been a reasonable, strategic basis for trial
counsel’s decision not to seek court funding for an expert, his failure
to do so was not necessarily representative of a conflict of interest.
2. The habeas court did not abuse its discretion in denying the petition
for certification to appeal with respect to the petitioner’s ineffective
assistance of counsel claim: the record showed that trial counsel’s deci-
sion not to retain or request funding to retain an expert was based on
a number of appropriate factors, including his experience defending
cases involving sexual assault of young children, his view that the foren-
sic interview of the victim had been conducted properly and that the
victim appeared comfortable throughout the forensic interview, which
made her statements less susceptible to impeachment, and, thus, his
determination that the retention of a forensic psychologist would not
have been a worthwhile strategy under the circumstances; moreover,
there were no findings of fact in the record to support the petitioner’s
claim that the victim’s foster father was the possible culprit, and trial
counsel testified that he had considered and investigated the alternate
theory that the petitioner simply was treating the victim’s skin condition,
and decided it was not worth pursuing because of contradictory facts
in the case, and his failure to pursue that theory of innocence did not
constitute deficient performance.
Argued April 17—officially released July 31, 2018
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, Fuger, J.; judgment
denying the petition; thereafter, the court, Fuger, J.,
denied the petition for certification to appeal, and the
petitioner appealed to this court; subsequently, the
court, Bright, J., denied the petitioner’s motion for
articulation; thereafter, the court, Bright, J., granted in
part the petitioner’s motion for rectification; subse-
quently, the court, Kwak, J., denied the petitioner’s
motion for order. Appeal dismissed.
Damon A. R. Kirschbaum, with whom, on the brief,
was Vishal K. Garg, for the appellant (petitioner).
Bruce R. Lockwood, senior assistant state’s attorney,
with whom, on the brief, were Anne Mahoney, state’s
attorney, and Jo Anne Sulik, supervisory assistant
state’s attorney, for the appellee (respondent).
Opinion
DiPENTIMA, C. J. The petitioner, John Grover,
appeals following the denial of his petition for certifica-
tion to appeal 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 (1)
abused its discretion in denying his petition for certifica-
tion to appeal and (2) erroneously determined that he
was not denied his constitutional rights to counsel free
from conflicts of interest and to the effective assistance
of counsel.1
The record reveals the following relevant facts and
procedural history. On October 25, 2013, the petitioner
entered a plea of guilty under the Alford doctrine2 to
one count of risk of injury to a child in violation of
General Statutes § 53-21 (a) (2), and, on January 7, 2014,
the court sentenced him to seven years imprisonment
followed by ten years special parole; he also was
required to register as a sex offender for ten years. At
the petitioner’s plea hearing, the prosecutor recited the
following narrative.
In February 2011, the petitioner was in a relationship
with the victim’s mother and lived with her and the
female victim in Scotland, Connecticut. At that time,
the victim was ten years old.
‘‘On [February 15, 2011] the victim went to school at
Scotland Elementary School and she made a disclosure
[that the petitioner] had touched her private areas and
[had] also used lotion [on her]. Subsequently, the victim
was interviewed the following day at a child-friendly
location forensically.
‘‘During that interview the victim disclosed [that the
petitioner] and herself were alone in the master bed-
room of the residence. The [petitioner] pulled down
the pants of the victim and lifted up her shirt and began
rubbing lotion on her stomach and on her legs to include
also her inner thighs and also her vaginal area.
‘‘At some point the [petitioner] took a vibrator that
he had in his dresser and then also used that to have
contact with [the victim’s] intimate parts . . . . An
investigation was conducted and ultimately an arrest
warrant was applied for and granted charging [the peti-
tioner] with the crime of risk of injury [to a child] and
sexual assault in the first degree.’’
On April 6, 2011, the petitioner was arraigned and
bond was set at $75,000 cash or surety; the petitioner
posted bond the same day. The petitioner originally
was charged with sexual assault in the first degree in
violation of General Statutes § 53a-70 (a) (2) and risk
of injury to a child in violation of § 53-21 (a) (2).3
Prior to his arrest, the petitioner hired Attorney
Jerome Paun to represent him during the criminal inves-
tigation. Following his arrest, the petitioner and Paun
entered into a fee agreement for the purposes of pretrial
representation. The agreement provided for a fixed fee
of $7500 and covered all work leading up to trial. Under
the terms of this same agreement, once the case was
placed on the trial list, Paun was to be paid $250 an
hour with a $5000 retainer to be paid in full within thirty
days of the case being placed on the trial list. The
petitioner was employed when he hired Paun and was
able to pay the $7500 pretrial fee and to post bond for
his release. While the petitioner did not pay the trial
retainer in full, Paun estimated that he was able to pay
$2000 of the $5000 owed.
After jury selection, but before trial, the petitioner
reached a plea agreement with the prosecutor pursuant
to which he pleaded guilty to one count of risk of injury
to a child in violation of § 53-21 (a) (2). He was sen-
tenced on January 7, 2014.
On March 4, 2015, the petitioner filed an amended
petition for writ of habeas corpus. Relevant to this
appeal, the petitioner alleged that he was denied his
constitutional right to counsel free from conflicts of
interest because Paun had an actual conflict with
respect to his representation of the petitioner. Specifi-
cally, he argued that Paun had a financial incentive to
convince the petitioner to accept a plea rather than
proceed to trial due to the fact that the petitioner was
unable to pay Paun’s trial retainer in full. The petitioner
additionally claimed that he was denied his constitu-
tional right to effective assistance of counsel because
Paun failed (1) to retain or request funding from the
trial court in order to retain a forensic mental health
professional with expertise in investigating and
assessing child sexual abuse allegations and (2) to iden-
tify innocent alternative explanations for the allegations
against the petitioner.
The petitioner’s habeas trial was held on two separate
dates in October and December, 2015. At trial, the peti-
tioner presented evidence from Dr. Nancy Eiswirth, an
expert witness in forensic psychology, and Attorney
Michael Sheehan, who testified as a legal expert in the
area of criminal defense. Eiswirth testified that she
had reviewed the victim’s forensic interview and had
identified several issues with respect to the manner
in which it had been conducted. Specifically, Eiswirth
opined that the interview was not tailored properly to
accommodate the victim’s age and mental development;
she also was critical of the interviewer’s failure to rec-
tify contradictions and ambiguities in the victim’s state-
ment. Following this testimony, Sheehan testified that
based on his experience, if it seemed likely that the
forensic interview would be admitted into evidence,
a reasonably competent defense attorney would have
retained a forensic psychologist like Eiswirth to attack
the credibility of the victim’s statements made during
the interview.
When asked whether he considered hiring an expert
forensic psychologist, Paun testified that ‘‘it’s always a
consideration’’ and depended on the ‘‘terms of each
particular case.’’ Paun stated that based on his review
of the forensic interview and his own interview of the
victim,4 hiring an expert witness did not seem like a
‘‘terribly fruitful’’ strategy. Paun, whom the habeas
court credited as conducting a full investigation of this
case, did not consider the structure of the forensic
interview to be improper nor did he find the interview-
er’s questions to be leading or coercive. Moreover, fol-
lowing his own interview of the victim, Paun concluded
that her story remained largely consistent with her ear-
lier statements. He consulted with the petitioner about
the prospect of hiring an expert witness but cautioned
that, given the strength of the state’s case, there was a
substantial possibility he would be found guilty at trial.
Paun testified that the petitioner ultimately instructed
him to negotiate a plea agreement.
On November 2, 2016, the habeas court denied the
petition for writ of habeas corpus. The court found that
Paun had not labored under a conflict of interest and
had provided effective representation to the petitioner.
The court rejected the petitioner’s argument that Paun
rendered deficient performance in failing to request
funding for an expert witness because the petitioner
was not indigent and would not have qualified for such
assistance had it been requested. The habeas court also
found that, irrespective of whether performance was
deficient, the petitioner was not prejudiced by Paun’s
conduct and that even if Paun had obtained an expert
opinion, he would have still advised the petitioner to
plead guilty rather than proceed to trial. Thereafter, the
petitioner filed a petition for certification to appeal.
After the court denied the petition for certification to
appeal, this appeal followed. Additional facts will be
set forth as necessary.
I
The petitioner first claims that the habeas court
improperly denied his petition for certification to
appeal. We disagree and ‘‘begin by setting forth the
procedural hurdles that the petitioner must surmount
to obtain appellate review of the merits of a habeas
court’s denial of the habeas petition following denial
of certification to appeal. In Simms v. Warden, 229
Conn. 178, 187, 640 A.2d 601 (1994), [our Supreme
Court] concluded that . . . [General Statutes] § 52-470
(b) prevents a reviewing court from hearing the merits
of a habeas appeal following the denial of certification
to appeal unless the petitioner establishes that the
denial of certification constituted an abuse of discretion
by the habeas court. In Simms v. Warden, 230 Conn.
608, 615–16, 646 A.2d 126 (1994), [our Supreme Court]
incorporated the factors adopted by the United States
Supreme Court in Lozada v. Deeds, 498 U.S. 430, 431–32,
111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), as the appro-
priate standard for determining whether the habeas
court abused its discretion in denying certification to
appeal. This standard requires the petitioner to demon-
strate that the issues are debatable among jurists of
reason; that a court could resolve the issues [in a differ-
ent manner]; or that the questions are adequate to
deserve encouragement to proceed further. . . . A
petitioner who establishes an abuse of discretion
through one of the factors listed above must then dem-
onstrate that the judgment of the habeas court should
be reversed on its merits. . . . 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 reason-
ably determined that the petitioner’s appeal was frivo-
lous.’’ (Emphasis in original; internal quotation marks
omitted.) Haughey v. Commissioner of Correction, 173
Conn. App. 559, 562–63, 164 A.3d 849, cert. denied, 327
Conn. 906, 170 A.3d 1 (2017).
For the reasons set forth in this opinion, we conclude
that the petitioner has failed to show that his claims
are debatable among jurists of reason; that a court could
resolve the issues in a different manner; or that the
questions are adequate to deserve encouragement to
proceed further. Therefore, we further conclude the
habeas court did not abuse its discretion in denying the
petition for certification to appeal.
II
The petitioner claims that he was denied his constitu-
tional right to counsel free from conflicts of interest.
Specifically, he argues that Paun ‘‘had a financial incen-
tive to (1) convince [him] to accept the plea agreement
due to [his] inability to pay the trial fee, (2) withhold
information . . . about his constitutional right to rea-
sonably necessary expenses to formulate and present
a defense, and (3) forego filing a motion in the trial court
requesting funding for expert witnesses.’’ The petitioner
further contends that he was affected adversely by
counsel’s conflicting interests. We disagree.
Our courts have recognized that ‘‘[t]he sixth amend-
ment to the United States constitution as applied to the
states through the fourteenth amendment, and article
first, § 8, of the Connecticut constitution, guarantee[s]
to a criminal defendant the right to effective assistance
of counsel. . . . Where a constitutional right to counsel
exists, our [s]ixth [a]mendment cases hold that there
is a correlative right to representation that is free from
conflicts of interest.’’ (Citations omitted; footnotes
omitted; internal quotation marks omitted.) State v.
Crespo, 246 Conn. 665, 685, 718 A.2d 925 (1998), cert.
denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d
909 (1999).
‘‘In a case of a claimed conflict of interest . . . in
order to establish a violation of the sixth amendment the
defendant has a two-pronged task. He must establish
(1) that counsel actively represented conflicting inter-
ests and (2) that an actual conflict of interest adversely
affected his lawyer’s performance. . . . Where there is
an actual conflict of interest, prejudice is presumed
because counsel [has] breach[ed] the duty of loyalty,
perhaps the most basic of counsel’s duties. Moreover,
it is difficult to measure the precise effect on the defense
of representation corrupted by conflicting interests.
. . . Accordingly, an ineffectiveness claim predicated
on an actual conflict of interest is unlike other ineffec-
tiveness claims in that the petitioner need not establish
actual prejudice. . . .
‘‘An actual conflict of interest is more than a theoret-
ical conflict. The United States Supreme Court has cau-
tioned that the possibility of conflict is insufficient to
impugn a criminal conviction. . . . A conflict is merely
a potential conflict of interest if the interests of the
defendant may place the attorney under inconsistent
duties at some time in the future. . . . To demonstrate
an actual conflict of interest, the petitioner must be
able to point to specific instances in the record which
suggest impairment or compromise of his interests
for the benefit of another party.’’5 (Emphasis in original;
internal quotation marks omitted.) Tilus v. Commis-
sioner of Correction, 175 Conn. App. 336, 349–50, 167
A.3d 1136, cert. denied, 327 Conn. 962, 172 A.3d 800
(2017).
In resolving the petitioner’s claim, we apply well
established standards of review. ‘‘On appellate review,
the historical facts found by the habeas court may not
be disturbed unless they [are] clearly erroneous . . . .’’
(Internal quotation marks omitted.) Rodriguez v. Com-
missioner of Correction, 131 Conn. App. 336, 343, 27
A.3d 404 (2011), aff’d, 312 Conn. 345, 92 A.3d 944 (2014).
‘‘Whether the circumstances of pretrial counsel’s repre-
sentation, as found by the habeas court, amount to an
actual conflict of interest is a question of law [over]
which our review is plenary.’’ Shefelbine v. Commis-
sioner of Correction, 150 Conn. App. 182, 193, 90 A.3d
987 (2014).
The petitioner first argues that an actual conflict of
interest existed because Paun had a financial incentive
to convince him to plead guilty. We do not agree that
the petitioner’s inability to pay the outstanding balance
of the trial retainer created such a conflict. According
to the testimony of Paun, which the habeas court cred-
ited in its entirety, although he was disappointed that
the trial retainer had not been paid in full, Paun valued
his professional reputation above any single fee. He
testified that his advice throughout the pendency of the
criminal case was based on his overall assessment of
the facts and not the financial situation of the petitioner.
As the lone authority for his position that an actual
conflict of interest arises from an unpaid trial retainer,
the petitioner cites State v. Cheatham, 296 Kan. 417,
292 P.3d 318 (2013). This decision is inapposite. In Chea-
tham, the Kansas Supreme Court addressed the propri-
ety of a flat fee arrangement in a death penalty case.
Id., 452–53. There, the court concluded that such an
arrangement was highly disfavored because an attorney
was incentivized to do no more than necessary to secure
the fee rather than seek an acquittal for his or her client.
Id., 453. Moreover, the attorney in Cheatham admitted
that he had invested minimal time in his client’s case
because he needed ‘‘to earn a living.’’ Id., 454.
Here, not only was the trial fee arrangement between
Paun and the petitioner not a flat fee, but there are no
findings that suggest Paun abandoned his obligations
to the petitioner to focus on more lucrative endeavors.
Indeed, he was successful in securing a favorable plea
arrangement for his client that, given the original
charges, dramatically reduced the petitioner’s potential
prison sentence and his time on the sex offender regis-
try. The mere fact that counsel faced the possibility of
not being paid fully in the event the case went to trial
does not compel the inference that his advice was not
consonant with his client’s interests.
The petitioner next argues that because Paun had a
financial incentive to avoid trial, he withheld informa-
tion from the petitioner concerning his constitutional
right to reasonably necessary expenses to formulate
and present a defense and, concomitantly, failed to file
a motion for the funding of an expert witness. In support
of this contention, the petitioner principally relies on
two cases: First, our Supreme Court’s holding in State
v. Wang, 312 Conn. 222, 92 A.3d 220 (2014) and, second,
the United States Supreme Court’s decision in Ake v.
Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53
(1985). In Wang, our Supreme Court held that indigent,
self-represented defendants have a constitutional right
to expert or investigative assistance that is reasonably
necessary to their defense. State v. Wang, supra, 245.
In Ake, the United States Supreme Court recognized that
the state must assure an indigent defendant’s access to
a psychiatric evaluation when the sanity of the defen-
dant is likely to be a significant factor at trial. Ake v.
Oklahoma, supra, 82–83.
Although we acknowledge the habeas court’s finding
that the petitioner in this case would not have qualified
for such assistance had it been requested, we resolve
this issue on different grounds. See Diaz v. Commis-
sioner of Correction, 125 Conn. App. 57, 63 n.6, 6 A.3d
213 (2010) (‘‘[i]t is axiomatic that [w]e may affirm a
proper result of the trial court for a different reason’’
[internal quotation marks omitted]), cert. denied, 299
Conn. 926, 11 A.3d 150 (2011). Even if the petitioner
was indigent, Wang had not been decided until after
the petitioner pleaded guilty and was sentenced.6 We
will not conclude that Paun acted unreasonably by fail-
ing to request an expert witness in accordance with
court precedent that did not exist at the time of repre-
sentation. See Bryant v. Commissioner of Correction,
290 Conn. 502, 513, 964 A.2d 1186 (‘‘a court deciding
an actual ineffectiveness claim must judge the reason-
ableness of counsel’s challenged conduct on the facts
of the particular case, viewed as of the time of counsel’s
conduct’’ [internal quotation marks omitted]), cert.
denied sub nom. Murphy v. Bryant, 558 U.S. 938, 130
S. Ct. 259, 175 L. Ed. 2d 242 (2009).
Further, to the extent that Paun could have fashioned
an argument for the funding of an expert pursuant to
the Supreme Court’s holding in Ake v. Oklahoma, supra,
470 U.S. 68, we do not believe that his failure to do so
suggests impairment or compromise of the petitioner’s
interests. As our Supreme Court acknowledged in
Wang, the holding of Ake left many questions unan-
swered concerning ‘‘the scope of the due process right
to expert assistance at public expense.’’ State v. Wang,
supra, 312 Conn. 235. Indeed, only four years prior to
Wang, our Supreme Court in State v. Martinez, 295
Conn. 758, 991 A.2d 1086 (2010), declined to answer
whether the due process clause of the fourteenth
amendment to the United States constitution guaran-
tees an indigent defendant the right to an expert witness
when reasonably necessary. Id., 778. Moreover, apart
from the unsettled legal precedent for such a request,
Paun explained that there were also factual reasons that
militated against seeking court funding for an expert
witness. Specifically, in this instance, the petitioner had
hired private counsel, he had posted a substantial bond,
and the case was in a judicial district where, in Paun’s
opinion, funding for an expert was unlikely to be consid-
ered a reasonably necessary case expenditure. Inas-
much as to perform effectively, counsel need not raise
every constitutional claim conceivable, similarly, we
conclude that such omissions are not necessarily repre-
sentative of a conflict of interest, especially when there
is a reasonable, strategic basis for counsel’s choice of
conduct. See Ledbetter v. Commissioner of Correction,
275 Conn. 451, 460–61, 880 A.2d 160 (2005).
We therefore conclude the petitioner has failed to
show that this issue is debatable amongst jurists of
reason, that a court could resolve the issue in a different
manner, or that the issue is adequate to deserve encour-
agement to proceed further. We further conclude the
habeas court did not abuse its discretion in denying
the petition for certification to appeal with respect to
this claim.
III
The petitioner next claims that the habeas court
improperly concluded that he received effective assis-
tance of counsel. Specifically, the petitioner argues that
Paun failed (1) to retain an expert forensic psychologist
and (2) to identify and pursue alternative innocent
explanations for the victim’s claims against him. We do
not agree.
We begin by acknowledging the established standard
for reviewing a constitutional claim of ineffective assis-
tance of counsel. ‘‘A habeas petitioner can prevail on a
constitutional claim of ineffective assistance of counsel
[only if he can] establish both (1) deficient performance,
and (2) actual prejudice.7 . . . For ineffectiveness
claims resulting from guilty verdicts, we apply the two-
pronged standard set forth in Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984); Levine v. Manson, 195 Conn. 636, 639–40, 490
A.2d 82 (1985). For ineffectiveness claims resulting
from guilty pleas, we apply the standard set forth in
Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed.
2d 203 (1985), which modified Strickland’s prejudice
prong. . . .
‘‘To satisfy the performance prong, the petitioner
must show that counsel’s representation fell below an
objective standard of reasonableness. . . . A peti-
tioner who accepts counsel’s advice to plead guilty has
the burden of demonstrating on habeas appeal that
the advice was not within the range of competence
demanded of attorneys in criminal cases. . . . The
range of competence demanded is reasonably compe-
tent, or within the range of competence displayed by
lawyers with ordinary training and skill in the criminal
law. . . . Reasonably competent attorneys may advise
their clients to plead guilty even if defenses may exist.
. . . A reviewing court must view counsel’s conduct
with a strong presumption that it falls within the wide
range of reasonable professional assistance.’’ (Footnote
added; internal quotation marks omitted.) Shelton v.
Commissioner of Correction, 116 Conn. App. 867, 874,
977 A.2d 714, cert. denied, 293 Conn. 936, 981 A.2d
1080 (2009).
‘‘Our standard of review of a habeas court’s judgment
on ineffective assistance of counsel claims is well set-
tled. 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.) Bigelow v. Commissioner of Correc-
tion, 175 Conn. App. 206, 212, 167 A.3d 1054, cert.
denied, 327 Conn. 929, 171 A.3d 455 (2017). For the
reasons provided herein, we conclude that the peti-
tioner has not met his burden of demonstrating deficient
performance and, therefore, do not reach the issue of
prejudice. ‘‘With respect to the performance prong of
Strickland, we are mindful that judicial scrutiny of
counsel’s performance must be highly deferential. It is
all too tempting for a defendant to second-guess coun-
sel’s assistance after conviction or adverse sentence,
and it is all too easy for a court, examining counsel’s
defense after it has proved unsuccessful, to conclude
that a particular act or omission of counsel was unrea-
sonable. . . . A fair assessment of attorney perfor-
mance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the
time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption
that [Paun’s] conduct falls within the wide range of
reasonable professional assistance; that is, the defen-
dant must overcome the presumption that, under the
circumstances, the challenged action might be consid-
ered sound trial strategy. . . . There are countless
ways to provide effective assistance in any given case.
Even the best criminal defense attorneys would not
defend a particular client in the same way.’’ (Emphasis
in original; internal quotation marks omitted.) Michael
T. v. Commissioner of Correction, 319 Conn. 623, 632,
126 A.3d 558 (2015).
First, the petitioner argues that Paun’s performance
was deficient because he failed to retain, or request
funding to retain, an expert witness. We are not per-
suaded. It is evident from the record that Paun’s deci-
sion not to retain, or request funding to retain, an expert
was based on a number of appropriate factors. Paun,
whose testimony the habeas court credited in its
entirety, had experience defending cases involving sex-
ual assault of young children. He was aware that foren-
sic psychologists were available and could be helpful
in certain situations. He determined, however, that such
a strategy was probably not worthwhile in this case.
Here, the victim appeared comfortable throughout the
forensic interview and offered information freely and
at times in an unsolicited manner. He viewed the inter-
view as having been conducted properly given his gen-
eral understanding of the applicable procedures for
conducting such interviews. From his experience, Paun
testified that these facts made the victim’s statements
less susceptible to impeachment by a forensic psy-
chologist.
Our courts have held in similar circumstances that
failing to retain or utilize an expert witness is not defi-
cient when part of a legitimate and reasonable defense
strategy. See, e.g., id., 638 (finding that trial counsel’s
decision not to call expert was reasonable given possi-
ble evidentiary repercussions); see also Victor C. v.
Commissioner of Correction, 179 Conn. App. 706, 719–
720, 180 A.3d 969 (2018) (decision not to retain expert
witness was not deficient in light of counsel’s experi-
ence and training with regard to defending child sexual
assault cases). Mindful of these cases and the findings
of the habeas court, we are not persuaded that Paun’s
decision not to retain or consult an expert witness con-
stitutes deficient performance.
In addition to failing to retain an expert witness,
the petitioner also claims that Paun’s performance was
deficient because he failed to identify alternative inno-
cent explanations for the victim’s allegations against
the petitioner. In support of this claim, the petitioner
first contends that Paun failed to consider the fact that
the victim spent the weekend preceding the February
14, 2011, incident with her foster father and that she
may have confused him with the petitioner as the perpe-
trator of the abuse. Second, he contends that Paun
failed to consider evidence to support the theory that
the victim simply misreported an innocent touch. Spe-
cifically, the petitioner asserts that he had applied lotion
to treat the victim’s eczema consistent with a physi-
cian’s recommendation, evidence of which could sup-
posedly be found in the victim’s pediatric records.
With respect to the petitioner’s first argument that
Paun purportedly failed to investigate the victim’s foster
father as the possible culprit, we can ascertain no find-
ings of fact in the record to support this contention.
Although the habeas court heard testimony from the
victim’s mother on this point, there is no indication that
the court credited this evidence in any respect. Absent
a finding from the habeas court that supports the peti-
tioner’s claim, we cannot conclude that Paun’s decision
not to investigate this alternative theory was constitu-
tionally deficient.
Furthermore, contrary to the petitioner’s argument,
Paun testified that he had considered and, in fact, did
investigate the alternate theory that the petitioner sim-
ply was treating the victim’s eczema. He decided that
this theory was not worth pursuing because of contra-
dictory facts in the case. In particular, this theory did not
explain the victim’s allegations concerning the vibrator
nor was it consistent with the mother’s initial statement
to the police. In that statement, the mother told investi-
gators that the victim’s eczema was on her arms and
that the petitioner never had applied lotion to the victim
in the past. Given these surrounding facts, and the
‘‘strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance’’;
(internal quotation marks omitted) Sanders v. Commis-
sioner of Correction, 169 Conn. App. 813, 840, 153 A.3d
8 (2016), cert. denied, 325 Conn. 904, 156 A.3d 536
(2017); we cannot conclude that failing to pursue this
theory of innocence constituted deficient performance.
We thus conclude the petitioner has failed to show
that his claim of ineffective assistance of counsel
involves issues that are debatable amongst jurists of
reason, that a court could resolve the issues in a differ-
ent manner, or that the issues are adequate to deserve
encouragement to proceed further. Accordingly, the
habeas court did not abuse its discretion in denying
the petition for certification to appeal with respect to
this claim.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The petitioner also claims that the habeas court failed to address or
make findings of fact with respect to several claims that were presented in his
amended petition. Although the petitioner acknowledges that the appellant
bears the burden of providing this court with an adequate record to review,
he argues that circumstances beyond his control have prevented him from
doing so.
As noted in this opinion, the petitioner is appealing from the judgment
of the habeas court rendered by Fuger, J. on November 2, 2016. Following
the decision to deny the petition for a writ of habeas corpus, the petitioner
filed a motion for articulation on May 15, 2017, regarding the court’s pur-
ported failure (1) to address the merits of each of the petitioner’s claims
and (2) to provide final rulings on certain evidentiary issues. Pursuant to
General Statutes § 52-470 (g) and Practice Book § 80-1, because Judge Fuger
retired effective February 7, 2017, the motion was directed to Bright, J.,
who denied the motion after finding that it could not be addressed on its
merits. Accordingly, in light of these facts, the petitioner requests that we
remand this case for a new trial consistent with our decision in Claude v.
Claude, 143 Conn. App. 307, 68 A.3d 1204 (2013). We believe that such
extraordinary relief is unwarranted.
In Claude, we faced the unique situation in which the trial court failed
to provide this court with any articulation of its decision, even after being
ordered to do so. Id., 310–11. As it was impossible to divine the basis for
the court’s decision from its ‘‘postcard order,’’ and because the plaintiff
could not be faulted for the inadequate record, we remanded the case for
a new hearing. Id., 312. While this case is similar to Claude insofar as the
retirement of the presiding trial judge has prevented the petitioner from
seeking articulation with respect to several of his claims, we do not agree
that the unavailability of Judge Fuger prevents us from properly addressing
the merits of this appeal.
The petitioner also argues that the habeas court’s memorandum of deci-
sion includes factual inaccuracies that call into question its reliability. We
acknowledge that there appear to be two places in the decision in which
the court suggests that the petitioner’s case went to trial; although any such
suggestion is clearly erroneous, we do not conclude that such mistakes
affect the soundness of the court’s other findings.
2
‘‘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.)
Rodriguez v. Commissioner of Correction, 167 Conn. App. 233, 234 n.1, 143
A.3d 630, cert. denied, 323 Conn. 929, 150 A.3d 231 (2016).
3
The petitioner later was charged with violation of a protective order
when the victim’s mother brought the victim to see him during the pendency
of the criminal case. This charge later was dropped as part of the petitioner’s
plea agreement.
4
Prior to trial, Paun received permission from the victim’s guardian ad
litem to interview the victim in person.
5
We note that the petitioner has made no argument that a potential
or theoretical conflict of interest existed in this circumstance. His only
contention with respect to this claim is that his inability to pay Paun’s trial
fee in full gave rise to an actual conflict of interest.
6
State v. Wang, supra, 312 Conn. 222, was decided on June 17, 2014. The
petitioner pleaded guilty on October 25, 2013, and was sentenced on January
7, 2014.
7
When a ‘‘petitioner has failed to meet the performance prong of Strick-
land, we need not reach the issue of prejudice under Hill v. Lockhart, [474
U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)]. It is well settled that
[a] reviewing court can find against a petitioner on either ground, whichever
is easier.’’ (Internal quotation marks omitted.) Placide v. Commissioner of
Correction, 167 Conn. App. 497, 504 n.2, 143 A.3d 1174, cert. denied, 323
Conn. 922, 150 A.3d 1150 (2016).