Moye v. Commissioner of Correction

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GERALDINE MOYE v. COMMISSIONER
OF CORRECTION
(AC 36851)
Keller, Prescott and Cremins, Js.
Argued April 4—officially released July 12, 2016
(Appeal from Superior Court, judicial district of New
Haven, Hon. Thomas J. Corradino, judge trial referee
[judgment].)
Raymond L. Durelli, with whom, on the brief, was
Michael Zariphes, assigned counsel, for the appellant
(petitioner).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were Michael Dearington, state’s
attorney, and David Clifton, assistant state’s attorney,
for the appellee (respondent).
Opinion
CREMINS, J. The petitioner, Geraldine Moye, appeals
from the judgment of the habeas court denying her
amended petition for a writ of habeas corpus.1 On
appeal, the petitioner claims that the habeas court
improperly concluded that (1) her criminal trial coun-
sel, Attorney Paul V. Carty, did not render ineffective
assistance by failing to fully investigate her competency
or to request a competency hearing before she entered
her plea of nolo contendere, and (2) her state and fed-
eral due process rights were not violated because ‘‘her
nolo contendere plea was invalid in that [she was]
incompetent at the time that she entered the plea
. . . .’’ We affirm the judgment of the habeas court.
The following factual and procedural history is rele-
vant to the resolution of the petitioner’s appeal. In Janu-
ary, 1994, the petitioner was charged with two counts of
arson in the first degree in violation of General Statutes
§ 53a-111. The petitioner made a statement to the police
in which she confessed to setting a fire in her home in
the hope that she could use the insurance proceeds
to make repairs to the furnace. As a result of a plea
agreement, she entered a nolo contendere plea to a
single substituted charge of arson in the second degree
in violation of General Statutes § 53a-112. On October
14, 1994, the court, Ronan, J., sentenced the petitioner
to seven years imprisonment, suspended after two
years, with three years of probation to follow.
In 1998, the petitioner filed a pro se petition for a writ
of habeas corpus. Appointed counsel filed an amended
petition in September, 2000. The amended petition con-
tained two counts. The first claimed that trial counsel
had failed to investigate adequately the petitioner’s
mental state in order to ensure that her plea was know-
ing, intelligent, and voluntary. The second claimed that
her plea had been obtained in violation of her state and
federal rights to due process of law because it had not
been knowingly, intelligently, and voluntarily made. The
respondent, the Commissioner of Correction, replied
on September 27, 2000, denying the allegations in the
petition.
The habeas trial was held on July 1, 2013.2 The peti-
tioner and trial counsel testified, and the court admitted
evidence, including various psychological evaluations
of the petitioner that trial counsel had obtained prior
to the petitioner’s plea. Following posttrial briefing and
oral argument, the court issued a memorandum of deci-
sion on March 27, 2014, in which it concluded that trial
counsel’s performance was not ineffective3 and that the
petitioner had failed to present sufficient evidence to
demonstrate that she was incompetent at the time of
her plea. The petitioner then filed the present appeal
challenging the habeas court’s determinations on both
grounds. She also restated her first claim to assert both
that trial counsel was ineffective for failing to investi-
gate her mental state and that he was ineffective for
failing to move for a competency hearing pursuant to
General Statutes (Rev. to 1993) § 54-56d.4 The respon-
dent has not objected to this change, and has addressed
both aspects of the ineffectiveness claim. Additional
facts will be set forth as necessary.
I
The petitioner’s first claim is that her trial counsel
rendered ineffective assistance in that he failed to inves-
tigate adequately her competency and mental state, and
failed to request that the court order a competency
hearing pursuant to § 54-56d. The petitioner claims that
by failing to do so, trial counsel failed to ensure that she
was competent to stand trial and to make an intelligent,
knowing, and voluntary decision on whether to plead
nolo contendere. This contention hinges on several psy-
chological evaluations regarding the petitioner’s mental
health, which her trial counsel obtained and which the
petitioner now claims should have alerted trial counsel
to the need to investigate her competency further or
to move for a competency hearing. The respondent
asserts that the evaluations do not suggest incompe-
tence and that trial counsel’s testimony regarding his
interactions with the petitioner and his interpretation
of the evaluations, which the trial court found credible,
demonstrate that he did not have cause to either further
investigate the petitioner’s competency or to request a
competency hearing.
The standard of review pertaining to claims of ineffec-
tive assistance of counsel is well settled. ‘‘The habeas
court is afforded broad discretion in making its factual
findings, and those findings will not be disturbed unless
they are clearly erroneous. . . . Historical facts consti-
tute a recital of external events and the credibility of
their narrators. . . . Accordingly, [t]he habeas judge,
as the trier of facts, is the sole arbiter of the credibility
of witnesses and the weight to be given to their testi-
mony. . . . The application of the habeas court’s fac-
tual findings to the pertinent legal standard, however,
presents a mixed question of law and fact, which is
subject to plenary review.’’ (Citations omitted; internal
quotation marks omitted.) Anderson v. Commissioner
of Correction, 313 Conn. 360, 375, 98 A.3d 23 (2014),
cert. denied sub nom. Anderson v. Semple, U.S.
, 135 S. Ct. 1453, 191 L. Ed. 2d 403 (2015).
‘‘[I]t is well established that [a] criminal defendant
is constitutionally entitled to adequate and effective
assistance of counsel at all critical stages of criminal
proceedings.’’ (Internal quotation marks omitted.) Id.
‘‘[A] claim of ineffective assistance of counsel consists
of two components: a performance prong and a preju-
dice prong. To satisfy the performance prong . . . the
petitioner must demonstrate that his attorney’s repre-
sentation was not reasonably competent or within the
range of competence displayed by lawyers with ordi-
nary training and skill in the criminal law.’’ (Internal
quotation marks omitted.) Lapointe v. Commissioner
of Correction, 316 Conn. 225, 264, 112 A.3d 1 (2015).
‘‘[I]n the context of a guilty plea . . . 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.’’ (Internal quotation marks
omitted.) Carraway v. Commissioner of Correction,
317 Conn. 594, 600 n.6, 119 A.3d 1153 (2015). ‘‘Because
both prongs of [Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] must be
demonstrated for the petitioner to prevail, failure to
prove either prong is fatal to an ineffective assistance
claim.’’ Jefferson v. Commissioner of Correction, 144
Conn. App. 767, 773, 73 A.3d 840, cert. denied, 310 Conn.
929, 78 A.3d 856 (2013).
The following additional facts are relevant to our
resolution of the petitioner’s claim of ineffective assis-
tance of counsel. At the habeas trial, trial counsel testi-
fied that he had referred the petitioner for psychological
evaluation in order to determine whether ‘‘there was a
viable defense of mental disease or defect.’’ When asked
why he had referred her for evaluation, trial counsel
indicated that in general, he referred defendants for
evaluation if he thought, upon meeting them, that there
might be some mental illness, and, in particular, that
the petitioner’s confession ‘‘was kind of weird.’’ He then
stated that he received several reports and letters from
two doctors regarding their evaluations of the peti-
tioner.
The reports and letters discuss multiple testing days
with a psychologist, Cheryl Gelernter, and a neurologist,
James C. McVeety, from March through May, 1994. The
final letter from Gelernter to trial counsel stated that
the ‘‘test data provide compelling evidence for the con-
clusion that [the petitioner] has both an organic mental
disorder, probably temporal lobe epilepsy, and a
schizotypal personality disorder.’’ It described her rea-
soning ability as follows: ‘‘[T]here was considerable
evidence of serious problems in thinking throughout
the test battery. These difficulties tend to interfere with
logic and promote faulty judgment, substantially
increasing the probability of errors in decision-making.’’
It continued to state that the petitioner ‘‘was not ade-
quately equipped to cope with the severe psychological
stressors she experienced in the months preceding the
fire,’’ and that her ‘‘irrational behavior at the time of the
fire was influenced by firmly embedded and pervasive
characteristics of her dysfunctional personality.’’ It con-
cluded by recommending that the petitioner be referred
for treatment to address the outlined problems.
The letters also referenced test reports and letters
between the petitioner’s doctors, which also were sub-
mitted into evidence. The first report by Gelernter
stated that trial counsel ‘‘referred [the petitioner] to
assist in planning her defense to a charge of arson in
the first degree.’’ Trial counsel ‘‘requested an evaluation
of the [petitioner’s] mental health at present and at the
time of the fire and an opinion as to whether or not
she has a mental disorder that might have affected her
behavior in this incident.’’ The report stated that the
petitioner had a mental state in the normal range, but
only fair insight into her problems and impaired judg-
ment, that she was suffering severe psychological stress
and was depressed. It also stated that she was ‘‘alert,
and oriented to time, place, and person,’’ that ‘‘[n]o
deficits in productivity of thought or speech were noted
nor does [the petitioner] seem to hold any well-devel-
oped delusions,’’ and that ‘‘[n]o deficits in immediate,
short-term, or remote memory were noted . . . .’’ The
petitioner reported olfactory hallucinations, consisting
of aromas of dead flowers or marijuana, which she
experienced years apart. Gelernter’s second report
stated that ‘‘[i]n times of stress, she retreats into fantasy
and may have difficulty distinguishing fantasy from real-
ity. She lacks problem-solving skills and is likely to
respond to stress in impulsive and immature ways.’’
The petitioner was referred to McVeety for an electroen-
cephalogram to determine whether she suffered from
temporal lobe epilepsy. McVeety stated in a letter to
Gelernter that he performed the electroencephalogram
and determined that his findings were consistent with
temporal lobe epilepsy, but that further studies were
necessary ‘‘to determine if there is an indication to begin
treatment . . . .’’ Gelernter’s final report also stated
that the petitioner’s ‘‘overall level of intellectual func-
tioning is within the average range.’’
Trial counsel confirmed that he had read the letters
and reports. He testified that the petitioner had a num-
ber of mental health issues and ‘‘that it might have been
possible to mount a defense of mental disease or defect.
But it—I didn’t think that it would rise to a level of
the legal standard for mental disease or defect.’’ When
asked why the evaluations did not give him cause for
concern that the petitioner might not be capable of
assisting him with a defense, he testified: ‘‘Because read
through the language that was used. Um, it was—it’s
language that she may do this, or she might do this, or
she’s likely to do this, as opposed to a situation where
they definitively say she does not understand X, Y and
Z, or she cannot do this, or she cannot make this—
this connection.
‘‘So, there’s a lot of tenuous language that was used
in those reports, and for that reason, you know, I mean,
there was just—just so—too many outs from a medical
standpoint. So that if I tried to pin a doctor down to
say that, could she do this, or could she make the
connection between her actions and the consequences?
It would leave me hanging out there.’’
The court then asked trial counsel whether he ever
thought a competency examination might be warranted
and he testified: ‘‘Uh, at the time, I don’t believe that I
did. You know, I think that on the basis of—of what I
received, I felt that perhaps, she was, you know, she
might have been borderline, but I—I thought that.
And—and based on my interaction with her, she was
able to assist me, and I was able to—she was able to
understand what was going on. And I just didn’t think
that it would have been beneficial so.’’
On cross-examination, trial counsel testified regard-
ing why his interactions with the petitioner did not,
as the respondent’s counsel stated, ‘‘raise a flag about
competency’’: ‘‘I—she was able to understand every-
thing that was going on. She understood—understood
what she did in terms of not just the actions of setting
the fire, but in terms of her confession, and, um, uh,
the, um, ramifications of all of that would have on
her case.
‘‘She was able to discuss rationally with me potential
defenses. We—we also discussed the results of the psy-
chological evaluations and whether or not that would
rise to the level of—of, you know, uh, a defense against
conviction of the crimes charged.
‘‘And she was able to interact with me with, [in]
regard to plea bargaining. And I just, you know, so
she—she understood who everybody was, you know,
all the players were. You know, what she was charged
with. She was able to assist me, you know, with her
defense.’’
The court then asked trial counsel about the petition-
er’s competency regarding whether to plead guilty or
go to trial, and trial counsel answered that he ‘‘didn’t
have any reason, even given the reports that were pre-
pared, I didn’t have any concerns with regard to her
ability to make a decision about pleading guilty, or going
to trial. . . . She—she clearly understood that, you
know, if she went to trial, and she lost, she’d be a whole
lot worse off than if she was able to work it out for a
lesser plea.’’ Finally, trial counsel testified that he was
aware of the standards for competency, that his interac-
tions with the petitioner demonstrated that she could
assist in her own defense, and that she did in fact assist
in her own defense.5
Trial counsel also testified that he shared the informa-
tion from the mental health evaluations with the prose-
cutor, and that thereafter the prosecutor agreed to
reduce the charges. The sentencing transcript demon-
strates that trial counsel also remarked on her ‘‘psychi-
atric problems’’ during the sentencing hearing. He
testified at the habeas trial that, under the arson in the
first degree charge, the petitioner faced a mandatory
minimum sentence of ten years imprisonment, while
under the arson in the second degree charge to which
she pleaded nolo contendere, the maximum period of
incarceration would be five years imprisonment with
the right to argue for less. During sentencing, the judge
also remarked on the petitioner’s mental health issues
prior to sentencing her to seven years imprisonment,
suspended after two years, with three years of proba-
tion. The judge also ruled that a special condition of
her probation would be that she ‘‘continue with any
program of psychological or psychiatric counseling that
the [Office of Adult] Probation . . . feels appropriate
for her at that time.’’
The petitioner also testified at the habeas trial. In her
testimony, she did not describe any interactions with
trial counsel or the judge which should have suggested
to trial counsel that she was incompetent. She testified
that she did ‘‘[n]ot really’’ remember speaking with trial
counsel regarding the plea, and acknowledged that the
judge had asked her questions prior to the plea that
she answered on the record, but did not recall specifics.
The habeas court concluded its analysis of the peti-
tioner’s claim of ineffective assistance of counsel as
follows: ‘‘In the last analysis, [the psychological evalua-
tions present] contrasting views on the viability or effec-
tiveness of [the petitioner’s] thinking process which
cannot overcome [trial counsel’s] testimony that he
detected nothing in his contacts with [the petitioner],
which, in the last analysis, warranted a competency
question that was necessary to investigate. As noted,
many of the contacts and interaction between the doc-
tor and the petitioner in relation to the testing process
indicate [that the petitioner] knew what the object of
the testing was and had the ability to understand [and]
fully cooperate with that process. It would be difficult
to conclude that [the petitioner] could do that but yet
be unable to cooperate with and understand her lawyer
in preparing the case, and understand any advice rela-
tive to a change of plea.
‘‘Also, this was not a lawyer who wanted merely to
get a speedy resolution of the case at all costs. He
managed to achieve a very favorable resolution consid-
ering the seriousness of the charge and was quite aware
of mental health issues, sending her to be involved in a
process which consumed several testings, evaluations,
and meetings over several weeks, generating a report,
two evaluations and two letters from the doctor to
himself. This is mentioned as a reason the court has to
credit this lawyer’s believability about his conclusion
to not pursue a § 54-56d hearing based on the testimony
he offered.’’ The habeas court therefore determined that
the petitioner had not demonstrated that counsel was
ineffective. We agree.
Section 54-56d (a) provides that ‘‘[a] defendant shall
not be tried, convicted or sentenced while he is not
competent. For the purposes of this section, a defendant
is not competent if he is unable to understand the pro-
ceedings against him or to assist in his own defense.’’
General Statutes (Rev. to 1993) § 54-56d (a). Section
54-56d (b) provides in relevant part that ‘‘[a] defendant
is presumed to be competent. The burden of proving
that the defendant is not competent by clear and con-
vincing evidence and the burden of going forward with
the evidence are on the party raising the issue. . . .’’
General Statutes (Rev. to 1993) § 54-56d (b).6 ‘‘The stan-
dard we use to determine whether a defendant is com-
petent . . . is whether [the defendant] has sufficient
present ability to consult with his lawyer with a reason-
able degree of rational understanding—and whether he
has a rational as well as factual understanding of the
proceedings against him.’’ (Citations omitted; internal
quotation marks omitted.) State v. Dort, 315 Conn. 151,
170, 106 A.3d 277 (2014). ‘‘[T]he same standard used to
determine competency to stand trial also applies to
determine competency to plead guilty . . . .’’ State v.
Day, 233 Conn. 813, 823, 661 A.2d 539 (1995), overruled
in part on other grounds by State v. Connor, 292 Conn.
483, 528 n.29, 973 A.2d 627 (2009).
‘‘A defendant who suffers from a mental or emotional
impairment is not necessarily incompetent to enter a
guilty plea because [c]ompetence . . . is not defined
in terms of mental illness. An accused may be suffering
from a mental illness and nonetheless be able to under-
stand the charges against him and to assist in his own
defense . . . .’’ (Internal quotation marks omitted.)
Taylor v. Commissioner of Correction, 284 Conn. 433,
451–52, 936 A.2d 611 (2007).
‘‘In determining whether a defendant’s competence
has been sufficiently called into doubt so as to necessi-
tate a hearing on the matter, the United States Supreme
Court has cautioned that there is no single approach
or factor that is most important in establishing compe-
tency or lack thereof. See Drope v. Missouri, 420 U.S.
162, 180, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975). [E]vidence
of a defendant’s irrational behavior, his demeanor at
trial, and any prior medical opinion on competence to
stand trial are all relevant in determining whether fur-
ther inquiry is required, but . . . even one of these
factors standing alone may, in some circumstances, be
sufficient. There are, of course, no fixed or immutable
signs which invariably indicate the need for further
inquiry to determine fitness to proceed; the question is
often a difficult one in which a wide range of manifesta-
tions and subtle nuances are implicated. That they are
difficult to evaluate is suggested by the varying opinions
trained psychiatrists can entertain on the same facts.’’
(Internal quotation marks omitted.) State v. Dort, supra,
315 Conn. 162–63.
The petitioner has raised two related but distinct
claims regarding her trial counsel’s effectiveness. One is
that trial counsel should have moved for a competency
hearing. Our Supreme Court has stated that § 54-56d
requires ‘‘a competency evaluation any time a reason-
able doubt is raised regarding the defendant’s compe-
tency. . . . To establish such reasonable doubt, the
defendant must present substantial evidence, not
merely allegations, that he is incompetent.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Ross, 269 Conn. 213, 272, 849 A.2d 648 (2004). To demon-
strate that trial counsel was ineffective in this respect,
the petitioner must show that trial counsel had substan-
tial evidence to raise a reasonable doubt regarding her
lack of competence, but failed to act on it. The second
claim is that trial counsel should have investigated the
petitioner’s competence further. ‘‘In any ineffectiveness
case, a particular decision not to investigate must be
directly assessed for reasonableness in all the circum-
stances, applying a heavy measure of deference to coun-
sel’s judgments.’’ (Internal quotation marks omitted.)
Lorthe v. Commissioner of Correction, 103 Conn. App.
662, 706, 931 A.2d 348, cert. denied, 284 Conn. 939, 937
A.2d 696 (2007). To demonstrate that trial counsel was
ineffective in this respect, the petitioner must show that
trial counsel had sufficient evidence regarding her lack
of competence to require him to investigate the petition-
er’s competence further, but failed to do so. Both inquir-
ies required the habeas court to analyze the evidence
presented by the petitioner to determine what evidence
trial counsel likely had when making these two deci-
sions. We will therefore analyze the psychological eval-
uations, trial counsel’s own testimony regarding his
interactions with the petitioner, the petitioner’s state-
ments regarding her interactions with trial counsel and
overall presentation during the period leading up to her
plea, and any information regarding how other partici-
pants in the process, specifically, the prosecutor and
judge, perceived the petitioner.
In the present case, trial counsel stated that he sought
an opinion on whether there was ‘‘a viable defense of
mental disease or defect.’’ We take this to be a reference
to General Statutes § 53a-13, which provides in relevant
part that ‘‘[i]n any prosecution for an offense, it shall
be an affirmative defense that the defendant, at the
time he committed the proscribed act or acts, lacked
substantial capacity, as a result of mental disease or
defect, either to appreciate the wrongfulness of his con-
duct or to control his conduct within the requirements
of the law.’’ The evaluations themselves state that trial
counsel referred her to Gelernter to assist in planning
a defense, without stating what defense, and that trial
counsel ‘‘expressed concerns about [the petitioner’s]
current mental status and her mental status at the time
of the incident . . . .’’ Trial counsel’s purpose in
requesting the reports was to determine whether a lack
of capacity defense would be viable, but the evaluations
themselves contain a more generalized evaluation of
the petitioner’s mental state. Thus, although they were
not requested in order to assess competence, the evalu-
ations do contain a picture of the petitioner’s then-
current mental state. The evaluations demonstrate that
the petitioner suffered from some degree of mental
illness, which could, at times, impair her ability to think
clearly, particularly in stressful situations. Our review
of the evaluations does not suggest that a competent
attorney would determine, upon reading them, that fur-
ther investigation of his client’s competency, or a com-
petency hearing, was necessary.
Trial counsel’s opinion of the petitioner’s competency
was also informed by his own interactions with his
client. ‘‘[T]he opinion of the defendant’s counsel [as to
his or her client’s competency] is unquestionably a fac-
tor which should be considered when a trial court is
attempting to discern whether a request for a compe-
tency examination has merit. . . . The weight to be
assigned to the defense counsel’s opinion must be
assessed on a sliding scale; in any given case it will be
largely dependent on whether the attorney’s opinion is
based on specific facts related to the defendant’s then
current competency or lack thereof.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Dort,
supra, 315 Conn. 172; see also Maldonado v. Commis-
sioner of Correction, 141 Conn. App. 455, 464, 62 A.3d
528 (2013) (habeas court denied petition based on trial
and prior habeas counsel’s testimony that petitioner
was competent). In Jarrett v. Commissioner of Correc-
tion, 108 Conn. App. 59, 68–69, 73, 947 A.2d 395, cert.
denied, 288 Conn. 910, 953 A.2d 653 (2008), we upheld
the habeas court’s conclusion that trial counsel reason-
ably relied on a prior medical opinion and his own
observations of the petitioner to determine that the
petitioner was competent and had not manifested the
‘‘self-defeatist attitude’’ that the doctor had previously
said might pose difficulties.
On the basis of the language of the evaluations and
trial counsel’s own interactions with his client, trial
counsel determined that investigating the petitioner’s
competence further or moving for a competency hear-
ing was unnecessary because the petitioner was capable
of understanding the proceedings and assisting in her
defense. The habeas court credited his testimony. ‘‘As
an appellate court, we do not reevaluate the credibility
of testimony, nor will we do so in this case. 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.)
Sargent v. Commissioner of Correction, 121 Conn. App.
725, 736, 997 A.2d 609, cert. denied, 298 Conn. 903, 3
A.3d 71 (2010). We conclude that a reasonably compe-
tent attorney who read these reports and interacted
with his client in the manner described would not be
required to investigate further or to move for a compe-
tency hearing.
The petitioner’s own testimony at the habeas pro-
ceeding does not suggest that she gave any indication
of incompetence to her attorney or the presiding judge.
She did not testify as to anything she said or did that
would have suggested to her attorney, the trial judge,
or the doctors who interviewed her that she was incom-
petent.
Finally, the fact that the trial judge and the prosecutor
also reviewed the psychological evaluations provides
further support that trial counsel’s decision not to move
for a hearing was reasonable. The prosecutor and the
judge each may independently assess the competence
of a defendant and move for or order a competency
hearing. See State v. Dort, supra, 315 Conn. 163–64
(‘‘[a]ny party before the court—including the court
itself—may raise the issue of the defendant’s compe-
tency at any time during a criminal proceeding by
requesting that the court order a competency examina-
tion’’). Trial counsel stated that the prosecutor offered
the plea deal after reviewing the medical reports, and
the judge noted the petitioner’s mental impairments in
his sentencing remarks. Although the petitioner did not
provide either the habeas court or this court with the
plea hearing transcript, she acknowledged that she
answered the judge’s questions when pleading.7 See
Hunnicutt v. Commissioner of Correction, 83 Conn.
App. 199, 207, 848 A.2d 1229 (analysis of petitioner’s
answers during plea hearing component of performance
prong analysis regarding trial counsel’s claimed failure
to assess petitioner’s mental state prior to plea), cert.
denied, 270 Conn. 914, 853 A.2d 527 (2004). This pro-
vided the judge, along with trial counsel and the prose-
cutor, with another opportunity to assess her
competence.
On the basis of all of the foregoing, we conclude that
the habeas court properly determined that the peti-
tioner failed to demonstrate that her trial counsel ren-
dered ineffective assistance, either by failing to
investigate the petitioner’s competence further or by
failing to move for a competency hearing.
II
The petitioner claims that the evidence she presented
at the habeas trial demonstrates that she was incompe-
tent when she entered her plea, and, therefore, incapa-
ble of entering her plea knowingly, voluntarily, and
intelligently. In support of this contention, the petitioner
points to the fact that trial counsel referred her for
investigation of a mental disease or defect defense, that
trial counsel said that her confession was ‘‘weird,’’ that
the petitioner testified that she was not acting in her
own best interest, and that she entered her plea of nolo
contendere because she wanted to commit suicide by
going to jail. The respondent contends that trial counsel
testified that the petitioner understood the proceedings
and that the habeas court credited this testimony. The
respondent further argues that there was no evidence
that the plea canvass was incomplete, and that the sen-
tencing transcript provides further support that the peti-
tioner’s plea was knowing, intelligent, and voluntary.
The respondent therefore asserts, and we agree, that
the habeas court properly denied the petition on this
ground.
In order to plead guilty, a defendant must be compe-
tent, and the plea must be knowing and voluntary; the
knowing and voluntary requirement is an additional
requirement on top of the basic competency standard.
Godinez v. Moran, 509 U.S. 389, 400, 113 S. Ct. 2680,
125 L. Ed. 2d 321 (1993). ‘‘The purpose of the knowing
and voluntary inquiry is to determine whether the defen-
dant actually understands the significance and conse-
quences of a particular decision and whether the
decision is uncoerced. . . . The focus of a competency
inquiry, by contrast, is the defendant’s mental capacity;
the question is whether he has the ability to understand
the proceedings.’’ (Internal quotation marks omitted.)
State v. Stiggle, 155 Conn. App. 117, 122, 106 A.3d 972,
cert. denied, 316 Conn. 904, 111 A.3d 472 (2015). ‘‘The
touchstone of competency . . . is the ability of the
defendant to understand the proceedings against him
and to assist in his own defense.’’ Taylor v. Commis-
sioner of Correction, supra, 284 Conn. 452. A determina-
tion of whether a plea was knowing and voluntary
requires a plenary review of the circumstances sur-
rounding the plea, particularly the plea canvass. See
Almedina v. Commissioner of Correction, 109 Conn.
App. 1, 6, 950 A.2d 553, cert. denied, 289 Conn. 925, 958
A.2d 150 (2008). At the same time, ‘‘[i]t is not our role
to reevaluate the credibility of witnesses or to overturn
factual findings of a habeas court unless they are clearly
erroneous.’’ Ramos v. Commissioner of Correction, 67
Conn. App. 654, 659, 789 A.2d 502, cert. denied, 260
Conn. 912, 796 A.2d 558 (2002).
In Jarrett v. Commissioner of Correction, supra, 108
Conn. App. 72–73, we reviewed a petitioner’s claim that
he was incompetent at the time he rejected a plea offer
and pleaded not guilty by reason of mental disease or
defect. The petitioner claimed that he rejected the plea
offer because he did not care about his defense, and
that he planned on killing himself after the trial. The
petitioner also presented expert testimony in the habeas
trial that he had been incompetent. Id., 72. Nonetheless,
we upheld the habeas court’s finding that ‘‘the petitioner
presented no evidence to overcome the presumption
of his competency at the time he rejected the plea offer.’’
Id. The habeas court, as the trier of fact, was permitted
to ‘‘believe some, none or all of the testimony’’ of the
petitioner regarding his state of mind. Id.
Here, the petitioner claims she was incompetent at
the time she pleaded nolo contendere. In part I of this
opinion, we considered whether the petitioner demon-
strated that trial counsel should have been aware of
her alleged incompetence. Here, we consider whether
the petitioner has demonstrated that she was in fact
incompetent when she pleaded nolo contendere.
Although the transcript of the plea hearing is unavail-
able, trial counsel testified that he did not remember
the plea hearing and canvass, but testified that the peti-
tioner ‘‘clearly understood that, you know, if she went
to trial, and she lost, she’d be a whole lot worse off
than if she was able to work it out for a lesser plea.’’
He also testified that he did not recall anything
occurring that would have warranted stopping the plea
hearing and calling for a competency hearing, and that
he was aware at the time that he could have done so.8
He further confirmed that the petitioner had not insisted
on going to trial at any point during his representation
of her.
The petitioner testified that she was severely
depressed at the time of her trial, and that she was
aware that her attorney referred her for testing regard-
ing lack of mental capacity. She was largely nonrespon-
sive regarding her ability to comprehend the
proceedings,9 and stated that she pleaded nolo conten-
dere so that she could go to prison and die, but that
she had not told anyone, including the doctors, that
that was her intention. When asked how she came to
realize that her plea was not intentional, she stated
that ‘‘[i]t was a growth process. It didn’t happen, like,
overnight. My first, um, enlightening, and this is to—
was to admit that I did suffer from mental health condi-
tions.’’ She also testified that she was facing an over-
whelming amount of stress at the time.
On cross-examination, the petitioner confirmed that
she knew she would go to prison after having entered
the plea of nolo contendere, although she reaffirmed
that she believed she was going to her death. She also
confirmed that when she entered her plea, the judge
had asked her questions to which she responded.10
On redirect examination, the petitioner’s attorney
again questioned her:
‘‘Q. Okay. What I want to ask you is, why—why didn’t
you just do it back then? Why didn’t you work with
him on putting on a defense for your case back then
when it was pending?
‘‘A. Uh, mental health conditions portrays in a per-
son’s—in my mind that did not help me to fight for
myself.
‘‘Q. So, if I understand you correctly, and correct me
if I’m wrong, are you saying that you were not in a
mental state of mind to help yourself, or to help
defend yourself?
‘‘A. Right.’’
At sentencing, the petitioner stated that she was ‘‘fully
prepared to face the punishment, and I must be pun-
ished for what I did.’’
In its memorandum of decision, the habeas court
credited trial counsel’s testimony, and did not credit
the petitioner’s, stating that her testimony that she
entered the plea of nolo contendere in order to die ‘‘is
belied by much of the information at or around the time
of the criminal proceedings up to and including the plea
and sentencing, which occurred only three months after
the [plea].’’ The court pointed to her cooperation with
the medical and psychological testing procedures as
‘‘hardly present[ing] a picture of a person who only
went through the process so she could die.’’ It also
noted that her statements of remorse at sentencing
demonstrated that she was not ‘‘bent on self-destruction
as a result of the plea process, but someone who was
well aware of the process she was engaged in and sorry
for what she had done.’’ Regarding her failure to remem-
ber her answers to many of the questions related to the
plea canvass, the court determined that although the
canvass transcript was not provided, there was no evi-
dence presented that the canvass was inadequate. The
court relied on evidence that trial counsel indicated
that he would have stopped the canvass if there was a
suggestion of incompetence, the petitioner agreed that
she responded to all the questions asked by the judge
at the plea canvass, and the trial judge was highly expe-
rienced and would have stopped the proceedings him-
self if there was a hint of incompetence. The habeas
court therefore determined that the petitioner’s second
claim should be denied. We agree with the habeas
court’s determination.
Neither the reports nor the petitioner’s own testi-
mony demonstrate that she was incompetent, and she
did not present any medical testimony at the habeas
trial regarding her claimed incompetence. As we have
already stated, we conclude, as did the habeas court,
that the reports demonstrate that the petitioner was
likely suffering from mental illness, but not that she
was incompetent at the time of her plea. The habeas
court did not credit the petitioner’s statements that she
was not going to fight for herself and was entering the
plea of nolo contendere in order to kill herself.11 We
see no reason to conclude that this determination
was erroneous.
On the basis of all of the foregoing, we conclude that
the habeas court properly determined that the peti-
tioner failed to demonstrate that she was incompetent
at the time she pleaded nolo contendere, and, therefore,
failed to demonstrate that her plea was not knowing,
voluntary, and intelligent.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The habeas court granted the petition for certification to appeal from
the judgment of the habeas court.
2
The lengthy history of the habeas action is recounted in greater detail
in a prior decision by this court in Moye v. Commissioner of Correction,
110 Conn. App. 134, 954 A.2d 240 (2008), and by the habeas court in Moye
v. Commissioner of Correction, Superior Court, judicial district of New
Haven, Docket No. CV-09-8412103-S, 2009 WL 3839292 (October 22, 2009).
From 2000 to 2004, the matter was stayed for the petitioner to obtain mental
health treatment. In 2005, the habeas court, Hon. Anthony V. DeMayo,
judge trial referee, ‘‘expressed concerns with the petitioner’s decision to go
forward with her petition . . . because the petitioner, who had received a
favorable plea bargain, already had served her sentence.’’ Moye v. Commis-
sioner of Correction, supra, 136. Following multiple hearings, the habeas
court dismissed the habeas petition as lacking merit and not being in the
petitioner’s best interest. Id., 138–39. We then reversed the habeas court’s
judgment and remanded the case to the habeas court because the petitioner
was entitled to an evidentiary hearing. Id., 142.
Upon remand to the habeas court, the petitioner’s attorney moved for a
competency hearing. The court, Corradino, J., which later presided over
the habeas trial, held a hearing on March 31, 2009, during which two doctors
testified and submitted reports on the issue of the petitioner’s competency.
The court determined that the petitioner was not competent, and determined
that the habeas matter should be stayed pending further evaluation of the
petitioner’s mental state with specific respect to the petitioner’s ‘‘ability to
demonstrate a rational understanding of her legal circumstances or her
capacity to rationally discuss and weigh the advisability of continuing with
this action.’’ Moye v. Commissioner of Correction, supra, 2009 WL
3839292, *12.
3
The court did not make a determination as to whether the petitioner
had proven that she was prejudiced by her attorney’s alleged deficient
performance because it concluded ‘‘that when the claim is made that the
basis for the ineffective assistance claim is counsel’s failure to investigate
competency, the establishment of such a claim incorporates a finding that
the second prong of prejudice has been established.’’ This court, however,
has rejected similar reasoning in Johnson v. Commissioner of Correction,
144 Conn. App. 365, 371, 73 A.3d 776, cert. denied, 310 Conn. 918, 76 A.3d
633 (2013), and Bethea v. Commissioner of Correction, 36 Conn. App. 641,
645–46, 652 A.2d 1044, cert. denied, 232 Conn. 918, 655 A.2d 260 (1995),
both of which involved competency questions, and we note that in Carraway
v. Commissioner of Correction, 317 Conn. 594, 600 n.6, 119 A.3d 1153 (2015),
our Supreme Court recently clarified that ‘‘[i]n the context of a guilty plea
. . . 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.’’ (Internal quota-
tion marks omitted.) As we have concluded that the habeas court correctly
determined that trial counsel’s performance was not deficient, we need not
remand the matter to the habeas court for a finding as to prejudice.
4
General Statutes (Rev. to 1993) § 54-56d provides in relevant part: ‘‘(a)
Competency requirement. Definition. A defendant shall not be tried, con-
victed or sentenced while he is not competent. For the purposes of this
section, a defendant is not competent if he is unable to understand the
proceedings against him or to assist in his own defense.
‘‘(b) Presumption of competency. A defendant is presumed to be compe-
tent. The burden of proving that the defendant is not competent by clear
and convincing evidence and the burden of going forward with the evidence
are on the party raising the issue. The burden of going forward with the
evidence shall be on the state if the court raises the issue. The court may
call its own witnesses and conduct its own inquiry.
‘‘(c) Request for examination. If at any time during a criminal proceeding
it appears that the defendant is not competent, counsel for the defendant
or for the state, or the court, on its own motion, may request an examination
to determine the defendant’s competency. . . .’’
5
On recross-examination, trial counsel also testified:
‘‘Q. You understand that [a] competency evaluation is different from a
mental health defense; right?
‘‘A. Sure.
‘‘Q. And you’ve had experience with competency—competency proceed-
ings, prior to representing [the petitioner]?
‘‘A. Sure.
‘‘Q. And you understood the inquiry that would need to be required that—
inquired into?
‘‘A. That’s correct.
‘‘Q. And your interactions with her made—made you believe that she
understood both the charges against her, the actors in it, and could actually
assist you in your defense; right?
‘‘A. Absolutely.
‘‘Q. And she was assisting you in your defense; right?
‘‘A. She was, yes.
‘‘Q. All right.’’
6
Number 96-215 of the 1996 Public Acts amended subsection (b) of § 54-
56d, changing the burden of proof for incompetence from clear and convinc-
ing evidence to a preponderance of the evidence. This change was effective
June 4, 1996. Those cases decided subsequent to this change therefore
involved a lesser burden for proving incompetence than was in place at the
time of the petitioner’s guilty plea.
7
Both parties stated they were unable to obtain the plea canvass transcript
due to the age of the case.
8
The following exchange occurred between the respondent’s counsel and
trial counsel:
‘‘Q. Do you recall the plea procedure? What happened during—when she
entered that plea?
‘‘A. Uh, it was too long ago.
‘‘Q. I figured as much. But had some—do—do you recall anything
occurring during that plea which would have caused you to stop it right
there and ask for that competency evaluation?
‘‘A. No.
‘‘Q. Were you aware that that’s a possibility?
‘‘A. Sure. I mean, I’ve done it in the past.
‘‘Q. And at—at the time you were representing [the petitioner], you had
been practicing nine years?
‘‘A. About that, yes.
‘‘Q. And had you done criminal cases before?
‘‘A. Absolutely.
‘‘Q. Had you had competency issues before?
‘‘A. Yes.
‘‘Q. So, you were familiar with it?
‘‘A. Yes.’’
9
The following colloquy occurred between the petitioner and her
habeas attorney:
‘‘Q. Do you have an understanding—what was your understanding of the
seriousness of the charges?
‘‘A. I don’t know if I made a conclusion at that time.
‘‘Q. Okay. Were you aware of what the evidence was that the state claimed
to have against you?
‘‘A. I’m not sure at that time.
‘‘Q. Okay. What—when—when the criminal case was pending, in your
mind, what were you—what was your goal? What were you focusing on?
‘‘A. Because I was so concerned for my family, and not myself, I did not
even consider those goals.
‘‘Q. Okay. At some point, I think in October of—or—or June of 1994, you
pled nolo contendere to the charge of [arson] in the second degree; do you
remember that?
‘‘A. Yes, I do.
‘‘Q. Okay. Do you remember having any discussions with Attorney Carty
about whether you should accept that plea or not?
‘‘A. Not really.’’
On cross-examination, the following exchange occurred between the
respondent’s counsel and the petitioner:
‘‘Q. You understood that you had two options; right? You could either
enter your plea or go to trial; right?
‘‘A. Are you talking now, or at that time?
‘‘Q. At that time.
‘‘A. At that time, I—I—I don’t know.’’
10
The following occurred between the petitioner and the respondent’s
attorney:
‘‘Q. You may not remember specific answers, but when the judge was
asking you questions on the day that you entered that plea, you did respond
to that judge; right?
‘‘A. On the record, yes, I responded.’’
11
Moreover, the petitioner’s testimony did not indicate that she was unable
to understand the proceedings. In State v. Ross, supra, 269 Conn. 213, the
defendant had stated that he wanted to stipulate to the death penalty and
made a variety of choices which appeared manifestly against his own inter-
est; our Supreme Court determined that this was not evidence of incompe-
tence. It stated that ‘‘the facts adduced at the hearing supported, at most,
an inference that the defendant was reluctant to assist counsel, not that he
was unable to do so.’’ (Emphasis omitted.) Id., 273; see also Jarrett v.
Commissioner of Correction, supra, 108 Conn. App. 72–73. By the same
token, the petitioner’s claims here, even were we to credit them, do not
indicate that her plea was entered while she was incompetent.