Fine v. Commissioner of Correction

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PAUL FINE v. COMMISSIONER OF CORRECTION
(AC 37457)
DiPentima, C. J., and Mullins and Bear, Js.
Argued December 1, 2015—officially released February 9, 2016
(Appeal from Superior Court, judicial district of
Tolland, Oliver, J.)
Robert T. Rimmer, assigned counsel, for the appel-
lant (petitioner).
Lawrence J. Tytla, supervisory assistant state’s attor-
ney, with whom, on the brief, was Michael L. Regan,
state’s attorney, for the appellee (respondent).
Opinion
DiPENTIMA, C. J. The petitioner, Paul Fine, appeals
from the judgment of the habeas court denying his
petition for a writ of habeas corpus. On appeal, the
petitioner claims that the court (1) abused its discretion
in denying his petition for certification to appeal the
denial of his petition for a writ of habeas corpus, and
(2) improperly determined that he received effective
assistance of counsel with respect to his decision to
plead guilty to murder in violation of General Statutes
§ 53a-54a and assault in the first degree in violation
of General Statutes § 53a-59 (a) (1). We dismiss the
petitioner’s appeal.
The following facts and procedural history are rele-
vant to this appeal. On March 30, 1992, the petitioner
pleaded guilty to murder and assault in the first degree.
In connection with the petitioner’s plea, the state
recited the following facts. On April 8, 1991, the peti-
tioner shot Steven O’Drain twice, causing fatal injuries.
He then entered an apartment and shot Yvonne O’Drain
in the leg in front of her two minor children. As a result,
Yvonne O’Drain’s leg was amputated below the knee.
After determining the petitioner’s plea to be knowing,
intelligent and voluntary, the court accepted his plea.
On June 9, 1992, the court sentenced the petitioner to
fifty years incarceration.
The petitioner commenced this habeas action and
filed his first amended petition on December 23, 2011.
The petitioner alleged that he had received ineffective
assistance of counsel from Attorney Gail Heller and
‘‘one or more successor attorneys.’’ Specifically, he
claimed that his plea was not knowing, intelligent
and voluntary.
The respondent, the Commissioner of Correction,
moved to dismiss the petition on the basis that the
petitioner previously had withdrawn a prior petition
with prejudice. See Fine v. Commissioner of Correc-
tion, 147 Conn. App. 136, 138, 81 A.3d 1209 (2013). The
habeas court granted the respondent’s motion. Id., 139.
On appeal, we reversed the judgment of the habeas
court and remanded the case for further proceedings.
Id., 148. In accordance with our opinion, a trial occurred
on October 28, 2014. In an oral ruling on November 3,
2014, the court denied the petition for a writ of
habeas corpus.
In its decision, the habeas court found that Heller, a
public defender, initially had represented the petitioner
at his criminal trial. After the discovery of a conflict
of interest, Richard Perry, a special public defender,
replaced Heller as the petitioner’s attorney. The habeas
court further found that after several months of pretrial
negotiations, the state offered and the defendant
accepted a plea deal where the petitioner would plead
guilty to murder and assault in the first degree and
receive a sentence of fifty years to serve. The habeas
court rejected the petitioner’s claim that he had been
told that he would serve forty years incarceration. It
found that his plea was ‘‘knowing and voluntary,’’ and
that there was no evidence that he had been forced to
enter the plea. The court determined that there had been
no deficient performance1 by either Heller or Perry.
Accordingly, it denied the petition for a writ of
habeas corpus.
The petitioner filed a petition for certification to
appeal on the ground that ‘‘it was an error of law for
the court to find that ineffective assistance of standby
counsel was not a claim for which habeas relief might
be granted.’’ The habeas court denied the petition for
certification to appeal, and this appeal followed.
‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the dismissal of his petition for habeas corpus
only by satisfying the two-pronged test enunciated by
our Supreme Court in Simms v. Warden, 229 Conn.
178, 640 A.2d 601 (1994), and adopted in Simms v.
Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First,
he must demonstrate that the denial of his petition for
certification constituted an abuse of discretion. . . .
To prove an abuse of discretion, the petitioner must
demonstrate that the [resolution of the underlying claim
involves issues that] 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. . . . Sec-
ond, if the petitioner can show an abuse of discretion,
he must then prove that the decision of the habeas
court should be reversed on the merits. . . . In
determining whether there has been an abuse of discre-
tion, every reasonable presumption should be given in
favor of the correctness of the court’s ruling . . . [and]
[r]eversal is required only where an abuse of discretion
is manifest or where injustice appears to have been
done.’’ (Internal quotation marks omitted.) St. Louis v.
Commissioner of Correction, 161 Conn. App. 358, 362,
A.3d (2015); see also Castonguay v. Commis-
sioner of Correction, 300 Conn. 649, 657–58, 16 A.3d
676 (2011).
General Statutes § 52-470 (g) provides: ‘‘No appeal
from the judgment rendered in a habeas corpus pro-
ceeding brought by or on behalf of a person who has
been convicted of a crime in order to obtain such per-
son’s release may be taken unless the appellant, within
ten days after the case is decided, petitions the judge
before whom the case was tried or, if such judge is
unavailable, a judge of the Superior Court designated
by the Chief Court Administrator, to certify that a ques-
tion is involved in the decision which ought to be
reviewed by the court having jurisdiction and the judge
so certifies.’’ Our Supreme Court has explained that this
statute does not implicate the jurisdiction of a reviewing
court; rather, it defines the scope of appellate review.
Simms v. Warden, supra, 230 Conn. 614–15; see also
Foote v. Commissioner of Correction, 151 Conn. App.
559, 564, 96 A.3d 587, cert. denied, 314 Conn. 929, 102
A.3d 709, cert. dismissed, 314 Conn. 929, 102 A.3d 709(2014); Logan v. Commissioner of Correction, 125
Conn. App. 744, 750, 9 A.3d 776 (2010), cert. denied,
300 Conn. 918, 14 A.3d 333 (2011).
The petitioner raised the issue of the ineffective assis-
tance of standby counsel in his petition for certification
to appeal. The present case did not involve standby
counsel; consequently, the petitioner’s brief to this
court does not address standby counsel. Conversely,
the issue briefed by the petitioner, the alleged ineffec-
tiveness of Perry with respect to his conduct during
the plea negotiations, was not set forth in the petition
for certification to appeal. We have stated that when a
petitioner does not raise a specific claim in the petition
for certification to appeal, we cannot conclude that the
court abused its discretion in denying the petition for
certification with respect to that claim. Tutson v. Com-
missioner of Correction, 144 Conn. App. 203, 216–17,
72 A.3d 1162, cert. denied, 310 Conn. 928, 78 A.3d 145(2013); Perry v. Commissioner of Correction, 131 Conn.
App. 792, 796–97, 28 A.3d 1015, cert. denied, 303 Conn.
913, 32 A.3d 966 (2011); Mercado v. Commissioner of
Correction, 85 Conn. App. 869, 872, 860 A.2d 270 (2004),
cert. denied, 273 Conn. 908, 870 A.2d 1079 (2005). Appel-
late review of a claim not set forth in the petition for
certification to appeal ‘‘would amount to an ambuscade
of the [habeas] judge.’’ (Internal quotation marks omit-
ted.) Campbell v. Commissioner of Correction, 132
Conn. App. 263, 267, 31 A.3d 1182 (2011). We therefore
decline to review the arguments set forth in the petition-
er’s brief concerning Perry, who was not standby
counsel.
At oral argument before this court, the petitioner’s
counsel argued that the inclusion of the word ‘‘standby’’
in the petition for certification to appeal constituted
nothing more than a scrivener’s error. Even if we were
to assume arguendo that this was the case, we still
would conclude that the court did not abuse its discre-
tion in denying the petition for certification to appeal.
The petitioner’s claim is that he was told that he would
serve only forty years in exchange for his guilty plea.
The only evidence supporting this claim was the peti-
tioner’s own testimony, which the habeas court
rejected. Because the court found his testimony not
credible, this claim necessarily must fail. ‘‘[T]his court
does not retry the case or evaluate the credibility of
the witnesses. . . . Rather, we must defer to the [trier
of fact’s] assessment of the credibility of the witnesses
based on its firsthand observation of their conduct,
demeanor and attitude. . . . The habeas judge, as the
trier of facts, is the sole arbiter of the credibility of
witnesses and the weight to be given to their testimony.’’
(Internal quotation marks omitted.) Orcutt v. Commis-
sioner of Correction, 284 Conn. 724, 741, 937 A.2d 656(2007); see Couture v. Commissioner of Correction,
160 Conn. App. 757, 770, 126 A.3d 585 (2015) (axiomatic
that appellate court cannot retry facts or pass on credi-
bility of witnesses). Put another way, ‘‘[i]t is well estab-
lished that a reviewing court is not in the position to
make credibility determinations.’’ (Internal quotation
marks omitted.) Mahon v. Commissioner of Correc-
tion, 157 Conn. App. 246, 256, 116 A.3d 331, cert. denied,
317 Conn. 917, 117 A.3d 855 (2015). As a result, we
would conclude that this issue is not debatable among
jurists of reason, that a court could not resolve the issue
in a different manner or that the questions presented do
not deserve encouragement to proceed further, and,
therefore, the denial of certification to appeal would
not constitute an abuse of discretion.
The appeal is dismissed.
In this opinion the other judges concurred.
1
‘‘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 require-
ments 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 performance was deficient. . . . Second, the [peti-
tioner] 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.’’ (Internal quotation mark omitted.) St. Louis
v. Commissioner of Correction, 161 Conn. App. 358, 363, A.3d
(2015). In cases where the petitioner has pleaded guilty, ‘‘to succeed on the
prejudice prong, the petitioner must demonstrate that, but for counsel’s
alleged ineffective performance, the petitioner would not have pleaded guilty
and would have proceeded to trial.’’ Washington v. Commissioner of Correc-
tion, 287 Conn. 792, 835, 950 A.2d 1220 (2008); see also Carraway v. Commis-
sioner of Correction, 317 Conn. 594, 600 n.6, 119 A.3d 1153 (2015). In the
present case, the habeas court did not reach the issue of prejudice.