Zillo v. Commisioner of Correction

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GEOVANNY ZILLO v. COMMISSIONER
OF CORRECTION
(AC 41330)
Keller, Elgo and Bishop, Js.
Syllabus
The petitioner, who had been convicted of sexual assault in the first degree
and risk of injury to a child, sought a writ of habeas corpus, claiming
that his trial counsel provided ineffective assistance. At the beginning
of the habeas trial, the petitioner informed the court that he was with-
drawing certain of his claims, including a claim that his trial counsel
was ineffective in failing to present certain medical testimony. On the
second day of trial, which occurred nearly two months later, the peti-
tioner requested that the court permit him to ‘‘unwithdrawn’’ that claim,
but the court denied the request to reinstate the claim. The habeas
court rendered judgment denying the habeas petition, from which the
petitioner, on the granting of certification, appealed to this court. Held:
1. The habeas court did not abuse its discretion when it denied the petition-
er’s request to reinstate the claim he had withdrawn: that court reason-
ably recognized that almost all witnesses already had been examined
when the request was made, and although not all of those witnesses
would have been needed to address the claim, it would have been unfair
to recall some witnesses after their dismissal, and to resurrect the claim
would have required additional preparation and time to explore the claim
with the previous witnesses; moreover, the petitioner waited nearly two
months after the first day of trial to bring forth his request, which he
could have explored at the end of the first day of trial or shortly there-
after, it was the petitioner who originally brought the claim forward
and then subsequently elected to withdraw it, and his claim that the
habeas court should have treated the request as a motion to amend the
pleadings was inadequately briefed and not reviewable.
2. The petitioner’s claim that the habeas court should have allowed into
evidence documents that related to his medical condition was unavailing;
because the habeas court never ruled on the issue of the admissibility
with regard to the medical records, this court was unable to reach the
merits of that issue on appeal.
3. The petitioner could not prevail on his claim that his trial counsel was
ineffective in failing to pursue a motion to dismiss based on the statute
of limitations in (§ 54-193a); because there was no credible evidence to
show the actual commencement of the statute of limitations in March,
1999, in that there was no credible evidence to show that the victim
had notified the requisite authorities in 1999, it was not unreasonable
for the petitioner’s trial counsel to conclude that a motion to dismiss,
on that basis, was not worth pursuing, as it was not applicable to the
present case.
4. The petitioner’s claim that trial counsel was ineffective when he failed
to object to allegedly harmful, inflammatory language in the state’s
substitute information that was read by the court clerk to the jury was
unavailing; it was plain from the record that inflammatory details of
the petitioner’s perverse misbehavior came into evidence several times
during the trial, and, therefore, there would have been no point in
objecting to the recitation of the details underlying the charges, and
because that information was adduced during the trial, the silence of
the petitioner’s trial counsel during the introductory part of the trial
caused the petitioner no harm.
5. The petitioner could not prevail on his claim that his trial counsel was
ineffective when he allegedly failed to assist the petitioner in freely
choosing whether to testify in his own defense; the habeas court credited
trial counsel’s testimony that he had advised the petitioner against testi-
fying and also that, ultimately, it was the petitioner’s decision to make,
and the petitioner admitted during the canvass that he was informed
of the pros and cons about testifying from his trial counsel, that he was
advised by his trial counsel not to testify and that he understood it was
his right to testify, which supported a determination that it was the
petitioner’s decision not to take the stand at his own criminal trial in
conjunction with the sound legal advice of his attorney.
6. The habeas court properly determined that the petitioner’s trial counsel
was not deficient in failing to pursue a hearing pursuant to Franks v.
Delaware (438 U.S. 154) in the pretrial stage of the criminal proceedings
with regard to a warrant that authorized the arrest of the petitioner and
the omission from the warrant of certain relevant exculpatory informa-
tion; the habeas court found that because the police obtained the evi-
dence before the petitioner’s arrest, any defects relative to the arrest
warrant had no bearing on the admissibility of the previously acquired
evidence so as to taint the fairness of the petitioner’s criminal trial, the
petitioner adduced no credible evidence to demonstrate intentional or
reckless omission of material facts by the police or prosecutor, and the
petitioner’s criticisms of the arrest warrant affidavit appeared trivial
and inconsequential toward the finding of probable cause, as a review
of the affidavit showed an abundance of incriminating evidence against
the petitioner.
7. The petitioner’s claim that his trial counsel provided ineffective assistance
when he failed to obtain the victim’s education records in order to
undermine her allegations was unavailing; even if trial counsel was
deficient in this regard, the petitioner was not prejudiced thereby, as
he was unable to produce any records or evidence regarding the victim’s
school attendance to undermine her testimony that she sometimes
arrived late because of the petitioner’s sexual abuse, and the petitioner
did not argue, nor did he demonstrate, any harm that was caused to
him by the absence of the records.
8. The petitioner could not prevail on his claim that his trial counsel was
ineffective in failing to file a motion to suppress evidence concerning
photographs taken of the petitioner’s apartment during an illegal search;
this court disagreed with the notion that an attorney’s decision to forgo
a motion to suppress nonincriminating evidence, stemming from a not
yet determined illegal search, constituted ineffective assistance of coun-
sel under Strickland v. Washington (466 U.S. 668), nor could defense
counsel be faulted for electing not to allocate time to the pursuit of
eliminating evidence that, on its face, was not prejudicial to his client.
Argued September 23—officially released December 31, 2019
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district
of Tolland, where the matter was tried to the court,
Sferrazza, J.; judgment denying the petition, from
which the petitioner, on the granting of certification,
appealed to this court; thereafter, the court, Sferrazza,
J., denied in part the petitioner’s motion for an articula-
tion; subsequently, this court granted the petitioner’s
motion for review but denied the relief requested
therein. Reversed in part; judgment directed.
Michael W. Brown, for the appellant (petitioner).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Eva Lenczewski, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
BISHOP, J. The petitioner, Geovanny Zillo, appeals
from the judgment of the habeas court denying his
revised amended petition for a writ of habeas corpus.
On appeal, the petitioner claims that the court (1)
abused its discretion by denying his request to ‘‘unwith-
draw’’ a claim and present medical evidence regarding
his genitals, (2) improperly concluded that he was not
denied the effective assistance of trial counsel, and
(3) improperly concluded that he was not denied the
effective assistance of appellate counsel. We conclude
that the habeas court did not have subject matter juris-
diction over the third claim and dismiss that portion of
the appeal.1 We affirm the judgment of the habeas court
as to the remaining two claims.
The following facts and procedural history are rele-
vant to our resolution of the petitioner’s appeal. In 2009,
following a jury trial, the petitioner was convicted of
three counts of sexual assault in the first degree, one
count of attempt to commit sexual assault in the first
degree, and four counts of risk of injury to a child. State
v. Zillo, 124 Conn. App. 690, 691, 5 A.3d 996 (2010). The
petitioner received a total effective sentence of thirty
years of imprisonment, execution suspended after fif-
teen years, with fifteen years of probation. Id., 693. This
court’s opinion in the petitioner’s direct appeal sets
forth the following facts: ‘‘The family of the eleven year
old victim in this case, all of whom emigrated to the
United States from China, owned a Chinese restaurant
that the [petitioner] frequented during 1998 and early
1999. During this time, the [petitioner] became friendly
with the victim and her family, often assisting the chil-
dren with their homework and with the English lan-
guage. The [petitioner] was invited to family gatherings
and holiday celebrations, and he purchased several gifts
for the family, including a computer for the children
and a $500 translator. The victim’s parents eventually
became concerned about the attention that the [peti-
tioner] was showing the victim, especially his attempts
to speak with her privately, and the family told the
[petitioner] that he no longer was welcome at the restau-
rant. Accordingly, the [petitioner] stopped going to
the restaurant.
‘‘After the [petitioner] stopped going to the restau-
rant, he began to follow the victim and to pick her up
as she waited for the bus to take her to school. The
[petitioner] would take the victim to a house where he
would sexually assault her. He also took her to a
wooded area to take photographs of her, and he took
her to a McDonald’s restaurant. The victim testified that
the [petitioner], whom she called G-Bunny, repeatedly
sexually assaulted her when she was eleven years old.
The [petitioner] made the victim remove her clothing,
kissed her breasts, performed oral sex on her, digitally
penetrated her vagina and her anus, licked her anus,
made her hold his erect penis in her hand, made her
urinate into his mouth so that he could taste her urine
to see if it was as ‘sweet’ as she and attempted to make
her perform oral sex on him. The [petitioner] instructed
the victim not to tell anyone about his behavior, and
he told her that he wanted to marry her. He also gave
her money.
‘‘In 2005 or 2006, the [petitioner] established an
account on the social website Myspace.com (MySpace)
using the name AnnaLuckyOne, where he purported to
be an Asian female and included a photograph of an
unknown Asian female on his profile. He soon con-
tacted the victim, who also had a MySpace account,
and he attempted to establish a relationship with the
victim by telling her that he was a young Asian girl.
The [petitioner], acting as this young Asian girl, subse-
quently told the victim that the [petitioner] was Anna-
LuckyOne’s friend and asked if she would be willing to
resume a friendship with him. Suspicious that her new
friend really was the [petitioner] and not another young
Asian female, the victim panicked and went to see her
school counselor and her dormitory parent in whom she
confided that the [petitioner] previously had sexually
assaulted her. Soon thereafter, the victim filed a police
report, and a warrant was issued for the [petitioner]’s
arrest. The [petitioner] was tried on eight counts as set
forth earlier in this opinion; he elected to be tried by
a jury.
‘‘The jury found the [petitioner] guilty on all eight
counts as charged. The court accepted the jury’s verdict
and sentenced the [petitioner] to a total effective term of
thirty years imprisonment, execution suspended after
fifteen years, with fifteen years of probation.’’ (Foot-
notes omitted.) Id., 692–93. The petitioner appealed his
conviction to this court, which affirmed the judgment
of the trial court.2 Id., 706.
Shortly thereafter, the petitioner, acting as a self-
represented party, filed a petition for a writ of habeas
corpus and, after counsel had been appointed, he subse-
quently filed a revised amended petition for a writ of
habeas corpus (revised amended petition). During the
habeas trial, the petitioner asserted twelve claims that
his criminal trial defense counsel, Attorney Jerry Atta-
nasio, had provided ineffective assistance during his
underlying criminal trial, as well as an ineffective assis-
tance claim against his appellate counsel which, as pre-
viously noted, is not properly before this court. The
habeas court denied all of the petitioner’s claims. The
petitioner filed a petition for certification to appeal the
denial of his revised amended petition, which the court
granted. This appeal followed. Additional facts and pro-
cedural history will be set forth as necessary.
I
The petitioner first claims that the habeas court
abused its discretion by (1) denying his request to
‘‘unwithdraw’’ a claim that he raised in his habeas peti-
tion that defense counsel rendered deficient perfor-
mance by failing to present evidence related to a medi-
cal condition of his genitals that would have been
crucial to his defense and (2) excluding evidence related
to his medical condition and making adverse findings
based upon the evidence that the petitioner sought to
rebut with the medical evidence. We disagree.
A
We first address the petitioner’s claim that the court
abused its discretion by denying his request to ‘‘unwith-
draw’’ a claim concerning the features of his genitals.
More specifically, the petitioner argues that the court
should have treated the request to ‘‘unwithdraw’’ the
claim set forth in paragraph 28 (R) of his revised
amended complaint as a request to amend the pleadings
to conform to the evidence. We are not persuaded.
We first set forth the standard of review and applica-
ble legal principles that guide our analysis. With regard
to a withdrawn claim, ‘‘[t]he trial court may exercise
its discretion . . . to deny the reinstatement of a claim
that has been expressly withdrawn. Only where the trial
court has abused that discretion will this court order
a reversal. [E]very reasonable presumption in favor of
the proper exercise of the trial court’s discretion will
be made. . . . Demonstrating that the trial court has
abused its discretion is a difficult task.’’ (Citation omit-
ted; internal quotation marks omitted.) McKnight v.
Commissioner of Correction, 35 Conn. App. 762, 767–
68, 646 A.2d 305, cert. denied, 231 Conn. 936, 650 A.2d
173 (1994).
The following additional procedural history is rele-
vant to our review of the petitioner’s claim. The habeas
trial lasted for three days; however, the first and second
days were nearly two months apart. At the beginning
of the habeas trial, on October 6, 2017, the petitioner
informed the court that he was withdrawing several of
his claims, including the claim set forth in paragraph
28 (R) of his revised amended petition alleging that his
right to effective assistance of trial counsel was violated
because trial counsel’s performance was deficient in
that ‘‘[counsel] failed to present the testimony of John
Antonucci, M.D., or other evidence of unusual features
of the petitioner’s genitalia . . . .’’ On the second day
of trial, November 29, 2017, the petitioner requested
that the court permit him to ‘‘unwithdraw’’ paragraph
28 (R), averring that there was information from the
first day of trial that he did not expect to be presented
in evidence and, as a result, he wanted to ‘‘pursue [the]
issue at least somewhat.’’ The court denied the request
to reinstate that claim, recognizing that the habeas pro-
ceeding had ‘‘already gone through ten witnesses’’ and
that ‘‘[i]t would be very difficult to reconstruct how
those witnesses would have been questioned or not
questioned.’’ Additionally, the court added that ‘‘it
would be very unfair to reopen it and after we’ve had
the attorney, trial attorney, the appellate attorney, [and]
the expert witness [testify] . . . . [The petitioner]
made the choice and sought to withdraw it.’’
We are not persuaded that the habeas court abused
its discretion when it denied the petitioner’s request to
‘‘unwithdraw’’ paragraph 28 (R). The court reasonably
recognized that almost all witnesses already had been
examined and, while not all of them would have been
needed to address the claim set forth in paragraph 28
(R), it would still be unfair to recall some witnesses
after their dismissal. Additionally, although the habeas
court did not specifically address the issue of time,
we are cognizant of the fact that the trial already had
spanned two months. To resurrect a claim would
require additional preparation and time to explore that
claim with the previous witnesses. Furthermore, the
petitioner waited nearly two months after the first day
of trial to bring forth his request to ‘‘unwithdraw,’’ some-
thing he could have explored at the end of the first day
of trial or shortly thereafter. Lastly, as the habeas court
observed, it was the petitioner who originally brought
the claim forward and then subsequently elected to
withdraw it.
With regard to his argument that the habeas court
should have treated his request to ‘‘unwithdraw’’ as
a motion to amend the pleadings to conform to the
evidence, the petitioner has not provided any support
for this argument and, accordingly, we decline to review
it as it is inadequately briefed. See State v. Buhl, 321
Conn. 688, 724, 138 A.3d 868 (2016) (‘‘[w]e are not
required to review issues that have been improperly
presented to this court through an inadequate brief’’
[internal quotation marks omitted]).
For the foregoing reasons, we conclude that the
habeas court did not abuse its discretion when it denied
the petitioner’s request to ‘‘unwithdraw’’ paragraph
28 (R).
B
Next, the petitioner argues that the habeas court
should have allowed into evidence documents that
related to his medical condition.3 The petitioner asserts
that the court abused its discretion by not permitting
him to introduce medical evidence related to the condi-
tion of his genitals. He argues that such evidence would
have been relevant to a viable defense, which should
have been presented at the petitioner’s criminal trial,
and that if such evidence had been introduced, it would
have rebutted the testimony of trial counsel that the
petitioner had refused to cooperate with the investiga-
tion into the issue. The petitioner further argues that
this evidence was also relevant to several other claims
he raised. Based on our review of the record, we are
unable to assess this claim because it appears that the
habeas court never ruled on the proffered evidence
relating to the petitioner’s medical condition.
‘‘It is elementary that to appeal from the ruling of a
trial court there must first be a ruling.’’ State v. Kim,
17 Conn. App. 156, 157, 550 A.2d 896 (1988). ‘‘[We] . . .
will not address issues not decided by the trial court.’’
(Internal quotation marks omitted.) Lee v. Stanziale,
161 Conn. App. 525, 539, 128 A.3d 579 (2015), cert.
denied, 320 Conn. 915, 131 A.3d 750 (2016).
During the second day of trial, the petitioner informed
the habeas court that there were a few issues he wanted
to review before the trial continued, namely the ‘‘issue
of medical records or medical condition that the peti-
tioner has.’’ The petitioner then moved right into a dis-
cussion of the withdrawn paragraph 28 (R). As the peti-
tioner continued his presentation to the habeas court,
his habeas counsel stated: ‘‘[M]y simple request is to
unwithdraw [paragraph 28 (R)] . . . .’’ After hearing
objections from the state’s attorney, the habeas court
ruled that it was ‘‘going to deny the request to reinstate
[paragraph 28 (R)].’’ After the court’s ruling, the peti-
tioner continued, in an effort to try ‘‘to make [his]
record,’’ and primarily focused his arguments on why
the claim in paragraph 28 (R) should be ‘‘unwithdrawn.’’
At the conclusion of the petitioner’s argument on this
claim, the court opined, as previously noted, ‘‘you . . .
sought to withdraw [the claim].’’
It is apparent from the record that the habeas court
never ruled, from the bench or in its memorandum
of decision, as to the issue of allowing into evidence
documentation on the petitioner’s medical condition.
The habeas court’s ruling specifically addressed the
petitioner’s attempt to ‘‘unwithdraw’’ paragraph 28 (R)
of his revised amended petition and nothing more.
Because the habeas court did not rule on the issue of
admissibility with regard to the medical records, we
are unable to reach the merits of that issue on appeal.
II
We next turn to the petitioner’s claim that the ‘‘habeas
court erred by finding that the petitioner’s right to the
effective assistance of counsel was not violated at the
petitioner’s criminal trial.’’ More specifically, the peti-
tioner claims that trial counsel, Attorney Jerry Atta-
nasio, failed to (1) pursue dismissal of the information
under the applicable statute of limitations; (2) object
to inflammatory information; (3) assist the petitioner
in freely choosing whether to testify in his own defense;
(4) pursue a Franks4 hearing; (5) obtain the education
records of the victim, R;5 and (6) file a motion to sup-
press evidence. We address each claim in turn.
We begin our analysis with the well established stan-
dard of review. ‘‘A petitioner’s right to the effective
assistance of counsel is guaranteed by the sixth and
fourteenth amendments to the United States constitu-
tion, and by article first, § 8, of the Connecticut constitu-
tion. . . . 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
violation of the petitioner’s constitutional right to effec-
tive assistance of counsel is plenary. . . . The habeas
judge, as the trier of facts, is the sole arbiter of the
credibility of witnesses and the weight to be given their
testimony. . . .
‘‘In Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States
Supreme Court enunciated the two requirements that
must be met before a petitioner is entitled to reversal
of a conviction due to ineffective assistance of counsel.
First, the [petitioner] must show that counsel’s perfor-
mance was deficient. . . . Second, the [petitioner]
must show that the deficient performance prejudiced
the defense. . . . Unless a [petitioner] makes both
showings, it cannot be said that the conviction . . .
resulted from a breakdown in the adversarial process
that renders the result unreliable. . . .
‘‘The first component, generally referred to as the
performance prong, requires that the petitioner show
that counsel’s representation fell below an objective
standard of reasonableness. . . . In Strickland, the
United States Supreme Court held that [j]udicial scru-
tiny of counsel’s performance must be highly deferen-
tial. It is all too tempting for a [petitioner] to second-
guess counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining
counsel’s defense after it has proven unsuccessful, to
conclude that a particular act or omission of counsel
was unreasonable. . . . A fair assessment of attorney
performance requires that every effort be made to elimi-
nate 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 presump-
tion that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the [peti-
tioner] must overcome the presumption that, under the
circumstances, the challenged action might be consid-
ered sound trial strategy. . . . [C]ounsel is strongly
presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reason-
able professional judgment. . . .
‘‘[T]he Constitution guarantees criminal defendants
only a fair trial and a competent attorney. It does not
insure that defense counsel will recognize and raise
every conceivable constitutional claim. . . . The [peti-
tioner] is also not guaranteed assistance of an attorney
who will make no mistakes. . . . What constitutes
effective assistance [of counsel] is not and cannot be
fixed with yardstick precision, but varies according to
the unique circumstances of each representation.’’
(Citation omitted; internal quotation marks omitted.)
Jackson v. Commissioner of Correction, 149 Conn.
App. 681, 690–92, 89 A.3d 426 (2014), appeal dismissed,
321 Conn. 765, 138 A.3d 278, cert. denied sub nom.
Jackson v. Semple, U.S. , 137 S. Ct. 602, 196 L.
Ed. 2d 482 (2016).
‘‘An ineffective assistance of counsel claim will suc-
ceed only if both prongs [of Strickland] are satisfied.
. . . It is axiomatic that courts may decide against a
petitioner on either prong [of the Strickland test],
whichever is easier. . . . In its analysis, a reviewing
court may look to the performance prong or the preju-
dice prong, and the petitioner’s failure to prove either
is fatal to a habeas petition.’’ (Citation omitted; internal
quotation marks omitted.) Echeverria v. Commissioner
of Correction, 193 Conn. App. 1, 9–10, A.3d ,
cert. denied, 333 Conn. 947, A.3d (2019).
A
First, the petitioner claims that the habeas court erred
by not finding that his trial counsel provided ineffective
assistance during his criminal trial when Attorney Atta-
nasio failed to pursue a motion to dismiss based on the
statute of limitations set forth in General Statutes § 54-
193a.6 The petitioner asserts that Attorney Attanasio
knew that there might have been a statute of limitations
issue and that his testimony at the habeas trial con-
firmed as much when he admitted to knowing about a
confrontation between the petitioner and police during
a traffic stop in 1999, during which police allegedly
told the petitioner to stay away from R and her family
because of allegations of sexual misconduct. Attorney
Attanasio confirmed that if he felt that he could have
submitted a motion to dismiss based on the statute of
limitations, he ‘‘would absolutely [have] file[d] that.’’
However, according to his additional testimony, Attor-
ney Attanasio believed that the petitioner’s case no
longer fell within the statute of limitations; accordingly,
Attorney Attanasio did not pursue a motion to dismiss.
The petitioner further asserts that he was prejudiced by
Attorney Attanasio’s failure to pursue dismissal because
there was ‘‘a reasonable probability that a motion to
dismiss would have been successful . . . .’’ We
disagree.
The following additional facts are relevant to the
petitioner’s claim. The petitioner claimed he was
stopped and ticketed for motor vehicle violations on
March 11, 1999. According to the petitioner, during that
time, he was interrogated for over two hours while he
remained in his car. He identified three police officers
who participated in the interrogation: Howard Nor-
throp, Dana Lent, and Richard Binkowski. Officers Nor-
throp and Lent testified, however, that they had no
recollection of such an interrogation, while Trooper
Binkowski testified that he never interacted with the
petitioner on that date; nor did he possess any knowl-
edge about R and incidents related to sexual assault.
In its opinion, the habeas court did not credit the
petitioner’s testimony nor did it find such an event, if
it did occur, to be sufficient to implicate the running
of the statute of limitations under § 54-193a. The habeas
court relied, correctly, on our Supreme Court’s decision
in State v. George J., 280 Conn. 551, 565–66, 910 A.2d
931 (2006), cert. denied, 549 U.S. 1326, 127 S. Ct. 1919,
167 L. Ed. 2d 573 (2007). There, the court held that the
five year limitation in § 54-193a does not run unless
‘‘the actual victim notifies the specified authorities.’’
(Emphasis added.) Id., 566. In the present case, there
is no credible evidence that R notified the requisite
authorities in 1999; on the contrary, she testified that
she first spoke to law enforcement about the petitioner
in 2006.
Because there was no credible evidence to show the
actual commencement of the statute of limitations
under § 54-193a in March, 1999, it was not unreasonable
for Attorney Attanasio to conclude that a motion to
dismiss, on that basis, was not worth pursuing, as it
was not applicable to the present case. Therefore, under
the first Strickland prong, we do not find that Attorney
Attanasio’s representation fell below an objective stan-
dard of reasonableness with regard to the petitioner’s
first claim.
B
Next, the petitioner claims that the habeas court
erred by not finding that his trial counsel provided inef-
fective assistance when Attorney Attanasio failed to
object to the harmful, inflammatory language in the
state’s substitute information read by the court clerk
to the jury. Specifically, the petitioner argues that the
habeas court ‘‘incorrectly concluded (1) only one part
of the information was unnecessarily inflammatory, and
(2) [that] later testimony about inflammatory details
cured any error in their inclusion in the information.’’
The petitioner further asserts he was prejudiced by the
reading of graphic details in the information to the jury
because ‘‘before any evidence was presented, without
an opportunity for the defense to rebut those inflamma-
tory details with a statement by the defense, the prose-
cutor started its case at an unfair advantage.’’
The following additional facts as found by the habeas
court are relevant to the petitioner’s claim. Initially, the
state charged the petitioner with fifteen counts that
involved risk of injury to a minor, sexual assault in the
first degree, and attempted sexual assault in the first
degree. The habeas court found it ‘‘appropriate and
pragmatic’’ for the state to provide details of each crime
to the jury in order to appropriately distinguish which
counts pertained to which act and that the ‘‘level of
detail was especially necessary because the date of all
the offenses was the same . . . .’’ However, the habeas
court took issue with the information of then count
four, which ‘‘averred that the petitioner disrobed the
eleven or twelve year old victim . . . [and] that count
unnecessarily particularized one of the removed gar-
ments as ‘white Winnie-the-Pooh underwear.’ ’’ Despite
finding the reference to Winnie-the-Pooh as ‘‘superflu-
ous and potentially inflammatory,’’ the habeas court
held that it was harmless because those specific details
came up several times throughout the trial in the form
of (1) testimony from R ‘‘that the petitioner had a predi-
lection for removing the Winnie-the-Pooh underwear
from the victim’’ and (2) the petitioner gave R gifts
related to Winnie-the-Pooh.
As previously noted, the second prong of Strickland,
the prejudice prong, provides that in order to effectively
prove ineffective assistance of counsel, a petitioner
‘‘must show that the deficient performance prejudiced
the defense.’’ (Internal quotation marks omitted.) Jack-
son v. Commissioner of Correction, supra, 149 Conn.
App. 691. Under the prejudice prong, ‘‘counsel’s defi-
cient performance prejudice[s] the defense [if] there
was a reasonable probability that the outcome of the
proceedings would have been different had it not been
for the deficient performance. . . . The second prong
is satisfied if it is demonstrated that there exists a rea-
sonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have
been different.’’ (Citation omitted; internal quotation
marks omitted.) Crocker v. Commissioner of Correc-
tion, 126 Conn. App. 110, 116, 10 A.3d 1079, cert. denied,
300 Conn. 919, 14 A.3d 333 (2011). Without showing
harm, a petitioner cannot prove ineffective assistance
of counsel. See id.In the present case, the petitioner’s core argument
involving harm is that the inflammatory language in
the information read to the jury allowed the state to
shortcut its presentation of evidence and that this early
recitation to the jury gave the state an unfair advantage.
The record does not support this claim. As the record
makes plain, inflammatory details of the petitioner’s
perverse misbehavior came into evidence several times
during the trial. Therefore, there would have been no
point in objecting to the recitation of the details underly-
ing the charges. Additionally, because this information
was adduced during the trial, counsel’s silence during
the introductory part of the trial caused the petitioner
no harm. Accordingly, this claim fails.
C
The petitioner’s third claim of ineffective assistance
of counsel is that Attorney Attanasio failed to assist
him in freely choosing whether to testify in his own
defense. To support this claim, he points to Attorney
Attanasio’s advice that the petitioner should not testify
because the state produced an electronic disk, the con-
tents of which were unknown, and the fact that Attorney
Attanasio failed to put the disk in evidence or alert the
court to the fact that it could not be accessed. The
petitioner posits that these actions undermined his abil-
ity to make a reasoned decision about testifying at his
criminal trial. He argues that his ability to testify ‘‘coher-
ently and competently’’ at the habeas trial is evidence
that Attorney Attanasio failed to properly protect the
petitioner’s decision to testify and, thus, he was preju-
diced under Strickland. We are not persuaded.
The following additional facts are relevant to the
petitioner’s claim. During the habeas trial, the petitioner
testified that (1) he created a fake internet identity via
MySpace in order to lure R into a series of online mes-
sage exchanges and (2) he did so in order to further
pursue R and inquire about her allegations of sexual
abuse. Additionally, Attorney Attanasio testified that
the petitioner did not want to testify about or present
evidence with regard to his genitalia. Attorney Attanasio
also testified that he was hesitant about the petitioner
testifying because he did not think the petitioner’s
explanations made any sense or that a jury would find
him believable. Despite preparing the petitioner until
3:30 a.m. on the morning of his intended testimony,
Attorney Attanasio was not confident that taking the
stand was the best decision for the petitioner. That
belief was strengthened by the state’s production of
the inaccessible disk just before that day’s proceedings
were set to begin.
Several times during the habeas trial, Attorney Atta-
nasio testified that he did, in fact, advise the petitioner
against testifying but that, ultimately, it was the petition-
er’s decision to make. The habeas court recognized in
its decision that ‘‘[t]he trial judge diligently canvassed
the petitioner concerning his decision [not to testify].
The petitioner acknowledged that he understood that
the choice was his to make, that he had discussed the
options with Attorney Attanasio, and that defense coun-
sel had advised him as to the risks and benefits atten-
dant to each option.’’
‘‘[T]he appropriate vehicle for claims that the defen-
dant’s right to testify was violated by defense counsel
is [through] a claim of ineffective assistance of counsel
[pursuant to] [Strickland]. . . . As is the case in any
such claim, the burden [is] on the petitioner to show
that he was not aware of his right to testify . . . .’’
(Citation omitted; internal quotation marks omitted.)
Rodriguez v. Commissioner of Correction, 35 Conn.
App. 527, 537, 646 A.2d 919, cert. denied, 231 Conn. 935,
650 A.2d 172 (1994). Before petitioners can claim they
have been deprived of the right to testify, they ‘‘are
required to take some affirmative action regarding [that]
right . . . .’’ Id. In Rodriguez, this court concluded that
when a petitioner never expressed his desire to testify
at trial and his counsel provided sound advice with
regard to the pros and cons of the decision to testify,
the petitioner could not then prevail on his claim that
counsel’s performance was deficient. Id., 536–37.
In the present case, the habeas court credited Attor-
ney Attanasio’s testimony that he advised the petitioner
against testifying and also that, ultimately, it was the
petitioner’s decision to make. Additionally, during the
canvass, the petitioner admitted that he was informed
of the pros and cons about testifying from Attorney
Attanasio, he was advised by Attorney Attanasio not to
testify, and that he understood it was his right to testify.
We conclude that it was the petitioner’s decision not
to take the stand at his own criminal trial in conjunction
with the sound legal advice of his attorney. Without
other evidence to show that Attorney Attanasio’s advice
against testifying was akin to undermining or preventing
the petitioner from testifying, we are not persuaded
that Attorney Attanasio’s actions resulted in ineffective
assistance of counsel.
D
The petitioner’s fourth claim of ineffective assistance
of counsel is that Attorney Attanasio failed to pursue
a Franks hearing, in the pretrial stage of the criminal
proceedings, with regard to (1) a warrant that author-
ized the arrest of the petitioner and (2) the omission
from the arrest warrant of relevant exculpatory infor-
mation from the online messages between R and the
petitioner, in which R denied understanding what
‘‘AnnaLuckyOne’’7 was discussing but later claimed it
was a reference to a urine fetish. According to the
petitioner, the arrest warrant affidavit contained unreli-
able information from an unrelated incident where the
petitioner was an uncharged person of interest. The
petitioner argues that the habeas court incorrectly con-
cluded that the legitimacy of the conviction remained
intact despite the warrant lacking probable cause and
that the court should have focused on whether a Franks
motion would have been successful if competently pur-
sued by Attorney Attanasio before the trial began. He
also argues that if a proper Franks hearing had been
conducted, there was a reasonable probability he would
have been able to convince the court that there was
not, in fact, probable cause to arrest the petitioner.
We disagree.
‘‘In [Franks v. Delaware, 438 U.S. 154, 155–56, 98 S.
Ct. 2674, 57 L. Ed. 2d 667 (1978)], the United States
Supreme Court held that ‘where the defendant makes
a substantial preliminary showing that a false statement
knowingly and intentionally, or with reckless disregard
for the truth, was included by the affiant in the warrant
affidavit, and if the allegedly false statement is neces-
sary to the finding of probable cause, the [f]ourth
[a]mendment requires that a hearing be held at the
defendant’s request.’ . . .
As our Supreme Court has explained, before a defen-
dant is entitled to a Franks hearing, the defendant must
‘(1) make a substantial preliminary showing that a false
statement knowingly and intentionally, or with reckless
disregard for the truth, was included by the affiant in
the warrant affidavit; and (2) show that the allegedly
false statement is necessary to a finding of probable
cause.’ ’’ (Citation omitted.) State v. Crespo, 190 Conn.
App. 639, 651, 211 A.3d 1027 (2019).
The habeas court articulated three reasons for not
finding trial counsel ineffective with regard to this
claim. The court stated: ‘‘First, the legitimacy of a con-
viction remains intact despite the fact that the arrest
warrant application that initiated the criminal proceed-
ing lacked probable cause . . . . That is, an unlawful
arrest does not require dismissal of criminal charges,
unless that illegality impaired the fairness of a subse-
quent trial . . . . In the petitioner’s case, the salient
evidence seized by the police was pursuant to a search
warrant which predated the issuance and execution of
the arrest warrant. That evidence included the petition-
er’s laptop computer, an external hard drive, and photo-
graphs of the petitioner’s car and home. Also, the police
interviewed the petitioner in conjunction with execu-
tion of the search warrant, and the petitioner revealed
certain information used against him at his trial.
‘‘Because the police obtained this evidence before
his arrest, any defects relative to the arrest warrant
had no bearing on the admissibility of the previously
acquired evidence so as to taint the fairness of his
criminal trial.
‘‘Secondly, in order for Attorney Attanasio to seek a
Franks hearing, he needed to harbor a good faith belief
that he could present a substantial showing that the
police affiants intentionally submitted a false or mis-
leading arrest warrant application, or did so with reck-
less disregard, as to material matters pertinent to a
probable cause determination by the issuing authority
. . . . [The petitioner] submits that relevant informa-
tion was intentionally or recklessly left out in order to
mislead the judge.
‘‘The court finds that the petitioner adduced no credi-
ble evidence to demonstrate intentional or reckless
omission of material facts by the police or prosecu-
tor. . . .
‘‘Thirdly . . . a Franks hearing is only required if the
correction of the misleading information would deprive
the affidavit of sufficient facts to establish probable
cause. In other words, if the unsullied portions of the
affidavit still justify a finding of probable cause, no
hearing is warranted . . . .
‘‘A review of the arrest warrant affidavit shows an
tioner even if one considers the information that the
petitioner argues was missing. The victim personally
described in great detail to the police the various sexual,
predatory, and injurious acts performed by the peti-
tioner. The petitioner’s own statement admitted engag-
ing in a ruse to entice the victim to communicate with
him, albeit unknowingly. The petitioner’s criticisms of
the affidavit appear trivial and inconsequential toward
the finding of probable cause.’’ (Citations omitted;
emphasis omitted; internal quotation marks omitted.)
On the basis of our review of the record, we agree
with the analyses and conclusions of the habeas court.
Therefore, this claim fails.
E
The petitioner’s fifth claim of ineffective assistance
of counsel is that Attorney Attanasio failed to obtain R’s
education records. The petitioner argues that Attorney
Attanasio should have subpoenaed R’s education
records in order to undermine her allegations that the
petitioner would pick her up while she was on her way
to school, for the purpose of sexually abusing her. He
further argues that his trial attorney expert, who testi-
fied at the habeas trial, agreed that Attorney Attanasio
was deficient in his performance for failing to obtain
R’s records. Lastly, he argues that if Attorney Attanasio
had subpoenaed those records and they were not pro-
duced, the trial court would have been able to instruct
the jury about the nonavailability of those records, pur-
suant to State v. Morales, 232 Conn. 707, 657 A.2d 585(1995), which would have allowed the jury to draw
inferences favorable to the petitioner, creating a reason-
able probability of a different outcome of the trial. We
are not persuaded.
First, we note the petitioner’s misplaced reliance on
our Supreme Court’s decision in Morales. In Morales,
our Supreme Court addressed the following two issues:
‘‘(1) what degree of protection the due process clause
of our state constitution offers to criminal defendants
when the police fail to preserve potentially useful evi-
dence, and (2) what remedy should follow if the defen-
dant has established that a failure to preserve such
evidence has violated his state constitutional rights.’’
Id., 713. Morales primarily concerns the failure of police
to preserve potentially exculpatory evidence. See id.,728–29. In the present case, the petitioner’s trial attor-
ney elected not to obtain certain records that may or
may not have been available at the time of trial or
assisted the petitioner in his defense. We, therefore,
find Morales to be inapposite to the present case.
Second, even if we were to conclude that Attorney
Attanasio’s failure constituted a violation of the perfor-
mance prong under Strickland, we are unpersuaded
that the petitioner was prejudiced as a result. In its
decision, the habeas court concluded that the petitioner
failed to establish ineffective assistance of counsel as to
this claim because the petitioner was unable to produce
any records or evidence regarding R’s school atten-
dance to undermine her testimony that she sometimes
arrived late because of the petitioner’s sexual abuse.
Additionally, the petitioner does not argue, nor does he
demonstrate, any harm that was caused to him by the
absence of these records. Without R’s school records,
or other evidence related to those records, we are not
in a position to decide whether Attorney Attanasio’s
decision not to obtain them was prejudicial because
those records could have just as easily affirmed R’s
claims as they could have affirmed the claims of the
petitioner. We refuse to engage in such speculation.
Therefore, we disagree with the petitioner that Attorney
Attanasio’s failure to obtain R’s school records consti-
tutes ineffective assistance of counsel.
F
The petitioner’s final claim of ineffective assistance
of counsel is that Attorney Attanasio failed to file a
motion to suppress evidence with regard to photo-
graphs taken of the petitioner’s apartment during an
illegal search. The petitioner asserts that a search war-
rant executed by the investigating authorities was for
267 Old Town Farm Road in Woodbury, which is the
address of his father, and that the petitioner’s apartment
is a ‘‘fully independently contained apartment that was
attached to the main structure’’ of his father’s residence.
It is the petitioner’s contention that the search warrant
was illegal because ‘‘[t]he investigating authority did not
obtain a search warrant that specified the petitioner’s
apartment’’; therefore, Attorney Attanasio, who was
aware of this issue, should have moved to suppress
evidence of the seized photographs. The petitioner pos-
its that, notwithstanding the fact that no incriminating
evidence was found in the apartment, the state’s refer-
ence to the messiness of his apartment through the
photographs, was prejudicial because they reflected
unfavorably on him ‘‘in general.’’ The habeas court
opined that this claim should fail for the lack of persua-
sive evidence connecting Attorney Attanasio’s failure
to move to suppress with either component of the
Strickland test. We agree.
We disagree with the notion that an attorney’s deci-
sion to forgo a motion to suppress nonincriminating
evidence, stemming from a not yet determined illegal
search, constitutes ineffective assistance of counsel
under Strickland. We cannot fault a defense attorney
for electing not to allocate time to the pursuit of elimi-
nating evidence that, on its face, is not prejudicial to
his client.
The form of the judgment is improper, the judgment
of the habeas court is reversed only with respect to the
petitioner’s ineffective assistance of appellate counsel
claim and the case is remanded with direction to render
judgment dismissing that claim for lack of jurisdiction;
the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
In his revised amended petition, the petitioner alleges that his appellate
counsel’s deficient performance prevented him from filing a timely petition
for certification to appeal this court’s affirmance of his judgment of convic-
tion to our Supreme Court pursuant to Practice Book § 84-4. Notwithstanding
that the petition for certification would have been late, because the petitioner
never attempted to file a motion for permission to file a late petition for
certification, the habeas court lacked jurisdiction to decide this claim. See
Janulawicz v. Commissioner of Correction, 310 Conn. 265, 271–72, 77 A.3d
113 (2013) (‘‘[w]e conclude that, despite the petitioner’s failure to comply
with the time period set forth in the Practice Book § 84-4 (a), the petitioner’s
habeas petition is not ripe for adjudication in view of the fact that the
petitioner’s injury is contingent on this court’s denial of a motion to file a
late petition for certification, a motion that the petitioner has never filed,
because he will not suffer such an injury if this court were to grant his
request for permission to file an untimely petition for certification to
appeal’’). Therefore, we will address only the petitioner’s two other claims
on appeal.
2
The petitioner brought a direct appeal from his convictions before this
court in 2010. See State v. Zillo, supra, 124 Conn. App. 691. In that appeal,
the petitioner pursued two claims: (1) the trial court erroneously admitted
2188 photographs into evidence and (2) he was denied his constitutional
right to a fair trial on the basis of prosecutorial impropriety. Id., 691–92.
Specifically, the petitioner argued that the photographs were irrelevant to
the charges he faced and highly prejudicial, and that the jury ‘‘could have
concluded that because the [petitioner] possessed these [photographs] in
2006, he ha[d] a proclivity to Asian women and, because of that proclivity,
he committed the charged offenses . . . .’’ (Internal quotation marks omit-
ted.) Id., 694. With regard to the prosecutorial impropriety claim, the peti-
tioner argued that ‘‘[t]he prosecutor made numerous statements to the jury
during the state’s closing argument that amounted to prosecutorial [impropri-
ety] because the prosecutor vouched for the credibility of one of the state’s
key witnesses; his statements appealed to and inflamed the jury’s emotions;
and, his comments distracted the jurors from making their own independent
judgment based on the evidence properly before the court.’’ (Internal quota-
tion marks omitted.) Id., 700–701. This court affirmed the judgment of the
trial court, holding that the petitioner failed to demonstrate harmfulness
with respect to the photographic evidence and that the comments made by
the prosecutor were of the type previously deemed proper by our Supreme
Court. Id., 700, 706.
3
According to the habeas trial transcript, the petitioner had ‘‘medical
records from the doctor that trial counsel said that the petitioner didn’t
attend appointments . . . [they] are from the time of around the criminal
trial or the middle of the criminal trial.’’
4
Franks v. Delaware, 438 U.S. 154, 155–56, 98 S. Ct. 2674, 57 L. Ed. 2d
667 (1978).
5
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 identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
6
General Statutes § 54-193 provides in pertinent part: ‘‘Notwithstanding
the provisions of section 54-193, no person may be prosecuted for any
offense, except a class A felony, involving sexual abuse, sexual exploitation
or sexual assault of a minor except within thirty years from the date the
victim attains the age of majority or within five years from the date the
victim notifies any police officer or state’s attorney acting in such police
officer’s or state’s attorney’s official capacity of the commission of the
offense, whichever is earlier, provided if the prosecution is for a violation
of subdivision (1) of subsection (a) of section 53a-71, the victim notified
such police officer or state’s attorney not later than five years after the
commission of the offense.’’
7
‘‘AnnaLuckyOne’’ was the MySpace account name the petitioner used
to connect with R.