Hanson v. Commissioner of Correction

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
KWEKU HANSON v. COMMISSIONER OF
CORRECTION
(AC 37389)
Beach, Mullins and Bishop, Js.
Argued September 8—officially released November 15, 2016
(Appeal from Superior Court, judicial district of
Tolland, Young, J.)
Kweku Hanson, self-represented, with whom, on the
brief, was Norman A. Pattis, for the appellant (peti-
tioner).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, Angela R. Macchiarulo, senior assistant state’s
attorney, and Tamara A. Grosso, assistant state’s attor-
ney, for the appellee (respondent).
Opinion
BISHOP, J. The petitioner, Kweku Hanson, appeals
from the judgment of the habeas court denying his
petition for certification to appeal from the court’s
denial of his habeas corpus petition. Specifically, the
petitioner claims that the habeas court abused its dis-
cretion in denying his petition for certification to appeal
and erred in concluding that (1) Attorney Salvatore
Bonanno did not represent the petitioner in the underly-
ing criminal proceedings and therefore could not be
the focus of an ineffective assistance of counsel claim;
(2) Attorney Donald Freeman’s representation of the
petitioner was not ineffective; and (3) Assistant State’s
Attorney Thomas O’Brien’s prosecution of the petition-
er’s cases in the criminal proceedings was not improper.
We disagree with the petitioner and dismiss the appeal.
The record reveals the following relevant factual and
procedural history. The petitioner, an attorney who had
practiced law for more than eighteen years, was
arrested on four separate occasions on a number of
charges arising from allegations that he had sexual rela-
tions with two minors, videotaped himself having sex-
ual intercourse with one victim, took sexually
provocative pictures of both victims, and later threat-
ened those victims in an effort to dissuade them from
cooperating in the prosecution of his cases. He was
first arrested on September 23, 2005, and subsequently
arrested on January 11, 2006, March 1, 2007, and April
4, 2007.
On August 2, 2007, while self-represented, the peti-
tioner pleaded guilty on a substitute information to the
following counts: two counts of sexual assault in the
second degree in violation of General Statutes § 53a-71
(a) (1); two counts of risk of injury to a child in violation
of General Statutes § 53-21 (a) (2); two counts of tam-
pering with a witness in violation of General Statutes
§ 53a-151; and one count of possession of child pornog-
raphy in the first degree in violation of General Statutes
§ 53a-196 (d). The court, White, J., continued the case
for sentencing, and, during that time, the petitioner
unsuccessfully tried to withdraw his guilty pleas.
On November 2, 2007, pursuant to the petitioner’s
August 2 pleas, the court, Koletsky, J., imposed upon
the petitioner a total effective sentence of twenty-five
years of incarceration, execution suspended after six
years, and thirty years of probation. The petitioner
directly appealed the court’s judgments of conviction,
which this court affirmed. State v. Hanson, 117 Conn.
App. 436, 979 A.2d 576 (2009), cert. denied, 295 Conn.
907, 989 A.2d 604, cert. denied, 562 U.S. 986, 131 S. Ct.
425, 178 L. Ed. 2d 331 (2010).
Thereafter, the self-represented petitioner instituted
this habeas action and, on March 4, 2013, filed his sec-
ond amended petition for a writ of habeas corpus. In
his petition, the petitioner alleged, inter alia, ineffective
assistance of counsel as to Bonanno and Freeman and
prosecutorial vindictiveness as to O’Brien.1 Following
a five day trial, the habeas court, Young, J., denied the
petition in a written memorandum of decision.2 The
petitioner then filed a petition for certification to appeal
from the habeas court’s denial of his petition for a writ
of habeas corpus, which the habeas court denied. This
appeal followed. Additional factual and procedural his-
tory will be set forth as necessary.
We begin by setting forth our general standard of
review. ‘‘Faced with the habeas court’s denial of certifi-
cation to appeal, a petitioner’s first burden is to demon-
strate that the habeas court’s ruling constituted an
abuse of discretion.’’ Simms v. Warden, 230 Conn. 608,
612, 646 A.2d 126 (1994). In order to prove an abuse of
discretion, the petitioner must show ‘‘that the issues
are debatable among jurists of reason; that the court
could resolve the issues [in a different manner]; or that
the questions are adequate to deserve encouragement
to proceed further.’’ (Emphasis in original; internal quo-
tation marks omitted.) Id., 616. ‘‘If the petitioner suc-
ceeds in surmounting that hurdle, the petitioner must
then demonstrate that the judgment of the habeas court
should be reversed on its merits.’’ Id., 612.
‘‘The underlying historical facts found by the habeas
court may not be disturbed unless the findings were
clearly erroneous. . . . Questions of law and mixed
questions of law and fact receive plenary review.’’
(Internal quotation marks omitted.) Crawford v. Com-
missioner of Correction, 294 Conn. 165, 174, 982 A.2d
620 (2009).
To the extent that the habeas court relies on credibil-
ity determinations of witnesses in deciding the issues,
this court must defer to the trier of fact’s assessment
of the credibility of the witness that is ‘‘made on the
basis of its firsthand observations of their conduct,
demeanor and attitude.’’ (Internal quotation marks
omitted.) Lapointe v. Commissioner of Correction, 316
Conn. 225, 268, 112 A.3d 1 (2015). We turn now to the
petitioner’s specific claims.
I
The petitioner’s first claim on appeal is that the
habeas court abused its discretion when it denied his
petition for certification to appeal from the court’s dis-
missal of his claim of ineffective assistance of counsel
as to Bonanno. The habeas court dismissed the claim
after determining that Bonanno was not acting as the
petitioner’s counsel, and, therefore, could not properly
be the focus of a claim of ineffective assistance of
counsel. The respondent, the Commissioner of Correc-
tion, argues that the habeas court correctly concluded
that the petitioner failed to show that Bonanno was
acting as his counsel in the underlying criminal proceed-
ings. We agree with the respondent.
The following additional facts are relevant to our
resolution of this claim. On March 16, 2007, Bonanno
was present in court on the petitioner’s behalf without
having filed an appearance. There, he told the court,
Prescott, J., that he was in discussions with the petition-
er’s family about being retained, and he asked for a
short continuance. When Bonanno returned to court
on March 19, 2007, he informed the court, Prescott,
J., that he would not be filing an appearance on the
petitioner’s behalf, as he could not work out payment
arrangements with the petitioner’s family. The record
reveals that, at this juncture, Bonanno had been paid
$15,000 by the petitioner’s family, an amount less than
he would require if the petitioner’s three files were tried
separately, which is how he believed the state would
proceed. Bonanno subsequently returned the $15,000
to the petitioner’s family. As Bonanno was leaving the
courtroom, the petitioner stated that he was interested
in discussing a plea deal that day. The court asked
Bonanno if he would be willing, even though he had
not been retained, to discuss the petitioner’s matters
with the court, Gold, J., and O’Brien in order to facilitate
a plea negotiation with the incarcerated petitioner.
Bonanno agreed to ‘‘speak with [the court] in chambers,
and then report back to [the petitioner],’’ and the peti-
tioner said he would be ‘‘content for [Bonanno] to be
standby counsel . . . .’’
At the habeas trial, Bonanno testified that during the
off-the-record discussions that followed, ‘‘Mr. O’Brien
conveyed some offer, I shared it with [the petitioner].
There were some things [the petitioner] didn’t like, [the
petitioner] asked me to ask back, I did, and that was
it. It wasn’t . . . I don’t think there was ever anything,
any agreement, any meeting of the minds on a plea
either . . . .’’
When court resumed after these discussions, the
court, Gold, J., noted its concern with having Bonanno
involved in the matter, stating to the petitioner: ‘‘You’re
going to have to be prepared to explain to me . . .
on Wednesday when I inquire, exactly what [role] Mr.
Bonanno is playing in this. . . . [W]hether you’re pro-
ceeding pro se, whether you’re proceeding pro se with
standby counsel, namely, Mr. Bonanno, whether Mr.
Bonanno is filing as counsel, but I’m told at this juncture
that he has no official standing in the court . . . .’’
The court later stated, in the same colloquy with the
petitioner, ‘‘I understand at this point you are appearing
pro se,’’ to which the petitioner responded, ‘‘that’s
correct.’’
Bonanno was in court on the petitioner’s next court
date of March 21, 2007, though the court, Gold, J., noted
that the petitioner still was representing himself. When
asked by the court about Bonanno’s role moving for-
ward, the petitioner told the court that he had tried
unsuccessfully to retain counsel, someone other than
Bonanno, and further stated that ‘‘I have no choice but
to represent myself’’ and ‘‘as of today, I don’t have legal
counsel. I don’t have legal counsel.’’ Thereafter, the
court and the petitioner agreed that Bonanno should
be excused due to the fact that he had ‘‘no official role’’
in the petitioner’s representation. Bonanno subse-
quently left the courtroom and the petitioner continued
to represent himself.
At the habeas trial, the petitioner called Bonanno to
testify regarding the petitioner’s numerous claims of
ineffective assistance of counsel against him. The state
immediately moved for an offer of proof as to the rele-
vance of Bonanno’s testimony since he had never filed
an appearance on the petitioner’s behalf. The court
allowed Bonanno to take the stand for a limited inquiry
as to whether he ever was formally retained by the
petitioner. Throughout the petitioner’s questioning of
Bonanno, the court reminded the petitioner that the
questioning should be limited to that issue. Bonanno
testified on direct-examination and cross-examination
that he was not retained and that he told the criminal
trial court, on multiple occasions, that he did not repre-
sent the petitioner. Finding that ‘‘there was no meeting
of the minds, there was no retention of Mr. Bonanno
to represent [the petitioner],’’ the habeas court orally
dismissed the petitioner’s ineffective assistance of
counsel claim as to Bonanno. In its written memoran-
dum of decision, the court highlighted, as further sup-
port for its decision, the fact that ‘‘[o]n March 21, 2007,
the criminal court found that Attorney Bonanno had
no official role in the criminal proceedings and the
petitioner concurred.’’
It is of little significance that the habeas court limited
Bonanno’s habeas testimony solely to the issue of reten-
tion, as the court had before it the full record from the
trial court proceedings. That record makes it clear, from
the trial court’s comments, Bonanno’s comments, and
the petitioner’s various assertions on March 16, 19, and
21, 2007, that Bonanno was not acting as the petitioner’s
attorney. Accordingly, on the basis of our review of the
record, we conclude that none of the facts, as found
by the habeas court, is clearly erroneous, and that its
ultimate conclusion that Attorney Bonanno did not rep-
resent the petitioner was amply supported by the record
and, therefore, was legally correct.3
II
The petitioner’s second claim on appeal is that the
habeas court abused its discretion when it denied his
petition for certification to appeal from the court’s
rejection of his claim of ineffective assistance of coun-
sel as to Freeman. Specifically, the petitioner contends
that he was prejudiced by Freeman’s deficient perfor-
mance when Freeman failed to consult with the peti-
tioner about what claims to assert in a substitute motion
to withdraw the petitioner’s guilty pleas. Additionally,
the petitioner contends that he was prejudiced by Free-
man’s deficient performance when Freeman failed to
allow the petitioner to testify at a hearing on the substi-
tute motion to withdraw. The respondent argues that
the habeas court correctly concluded that the petitioner
failed to show that Freeman rendered ineffective assis-
tance. We agree with the respondent.
We begin with our standard of review relevant to
this particular claim. We ‘‘cannot disturb the underlying
facts found by the habeas court unless they are clearly
erroneous . . . .’’ (Internal quotation marks omitted.)
Ricks v. Commissioner of Correction, 98 Conn. App.
497, 502, 909 A.2d 567 (2006), cert. denied, 281 Conn.
907, 916 A.2d 49 (2007). In claims of ineffective assis-
tance of counsel, ‘‘our review of whether the facts as
found by the habeas court constituted a violation of
the petitioner’s constitutional right to effective assis-
tance of counsel is plenary.’’ (Internal quotation marks
omitted.) Id.
In order to succeed on a claim of ineffective assis-
tance of counsel, ‘‘a habeas petitioner must satisfy the
two-pronged test articulated in Strickland v. Washing-
ton, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). Strickland requires that a petitioner satisfy both
a performance prong and a prejudice prong. To satisfy
the performance prong, a claimant must demonstrate
that counsel made errors so serious that counsel was
not functioning as the counsel guaranteed . . . by the
[s]ixth [a]mendment. . . . To satisfy the prejudice
prong, a claimant must demonstrate that there is a rea-
sonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have
been different. . . . The claim will succeed only if both
prongs are satisfied. . . . It is well settled that [a]
reviewing court can find against a petitioner on either
ground, whichever is easier.’’ (Emphasis in original;
internal quotation marks omitted.) Couture v. Commis-
sioner of Correction, 160 Conn. App. 757, 766, 126 A.3d
585, 592, cert. denied, 320 Conn. 911, 128 A.3d 954
(2015).
In analyzing counsel’s performance, ‘‘every effort
[must] be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time. . . . [T]he [peti-
tioner] must overcome the presumption that, under the
circumstances, the challenged action might be consid-
ered sound trial strategy.’’ (Internal quotation marks
omitted.) Id., 767. We turn now to the petitioner’s spe-
cific claims of ineffective assistance of counsel
against Freeman.
A
The petitioner first claims that the habeas court erred
in not finding that Freeman provided constitutionally
deficient representation by failing to consult with him
regarding the nature of the claims to raise in the substi-
tute motion to withdraw the petitioner’s guilty pleas.
We are not persuaded.
The following additional facts are relevant to our
resolution of this claim. The petitioner was self-repre-
sented at the time he pleaded guilty, and, after a can-
vass, the court, White, J., accepted his pleas as
knowingly, intelligently, and voluntarily made. The
court, as well, found that the petitioner had knowingly
and voluntarily waived his right to counsel. The peti-
tioner testified at the habeas trial that he had been
suffering from various medical issues while his files
were pending and that he had wanted to be transported
to the hospital because he felt he was not receiving
adequate medical attention from the Department of Cor-
rection. He further testified that during various plea
negotiations, O’Brien promised to have him transported
to the hospital in exchange for pleading guilty. This
alleged promise was not mentioned as part of the plea
canvass, and when the petitioner was transported back
to courthouse lockup after pleading guilty, and not the
hospital, he immediately began drafting a motion to
withdraw his pleas.
In the motion, filed pro se on September 17, 2007,
the petitioner alleged, inter alia, that his guilty pleas
were involuntary due to illness because he was ‘‘halluci-
natory, lassitude, and delusional’’ at the time of his
pleas ‘‘due to prescription pain pills, chest cyst, abdomi-
nal aches, hurting head, sleep deprivation, and nausea.’’
Before his motion to withdraw his guilty pleas was
heard, however, the petitioner retained Freeman, who,
on October 19, 2007, filed a substitute motion to with-
draw the petitioner’s guilty pleas. The substitute motion
did not include the petitioner’s claim that his pleas were
involuntary due to medical duress and instead alleged
that the court’s plea canvass did not comply with Prac-
tice Book §§ 39-19 (2), (3) and (4), or 39-20. Specifically,
the petitioner, through Freeman, claimed in the substi-
tute motion that it was insufficient for the court to ask
the petitioner, a self-represented attorney, if he was
familiar with the range of sentences for the crimes to
which he was pleading guilty rather than discussing the
sentence range and minimum mandatory sentences on
the record.
The petitioner testified at the habeas trial that he
wanted Freeman to ‘‘raise the claim that [the petition-
er’s pleas were] not voluntary because [the petitioner]
had [a] serious medical condition.’’ Freeman testified
at the habeas trial that ‘‘the only reasonable chance
. . . to get that motion granted to vacate [the petition-
er’s] pleas was that Judge White . . . failed to articu-
late the minimum mandatory penalties . . . .’’ He
further testified that the petitioner’s claim that his pleas
were involuntary due to medical duress ‘‘would not fly’’
and had ‘‘no chance at all.’’ Freeman also testified that
his decision to include certain claims in the substitute
motion was a strategy decision, which he had discussed
with the petitioner.
The habeas court, in denying the petitioner’s claim,
found no basis for the petitioner’s claim that Freeman
should have incorporated the petitioner’s medical
claims in his motion to withdraw the petitioner’s guilty
pleas. The court concluded: ‘‘Attorney Freeman was
in the best position to determine proper strategy for
successful prosecution of the motion.’’
This court previously has determined that it is an
appropriate and sound strategy for an attorney to deter-
mine which arguments to present on behalf of his client.
See Saucier v. Commissioner of Correction, 139 Conn.
App. 644, 652-53, 57 A.3d 399 (2012) (‘‘strategy of culling
out weaker claims is sound, not deficient, practice’’),
cert. denied, 308 Conn. 907, 61 A.3d 530 (2013). The
habeas court found that the petitioner failed to demon-
strate that Freeman’s decision not to raise a claim of
medical duress in the substitute motion was anything
short of such an appropriate and sound strategy.
Because the record of the habeas proceedings provides
support for the court’s determination, we conclude that
the habeas court did not err in finding that the petitioner
had not satisfied his burden of proving that Freeman’s
performance was constitutionally deficient as to this
claim.
B
The petitioner next claims that the habeas court erred
in not finding that Freeman provided constitutionally
deficient representation by failing to allow him to testify
at the hearing on the substitute motion to withdraw the
petitioner’s guilty pleas. We are not persuaded.
The following additional facts are relevant to our
resolution of this claim. The petitioner did not testify
at the October 26, 2007 hearing on the petitioner’s sub-
stitute motion to withdraw his guilty pleas. After the
court heard argument on the motion, Freeman relayed
to the court that the petitioner wanted to testify but
that Freeman did not want to put him on the stand.
After some discussion, the court noted to Freeman that
the petitioner ‘‘is looking like he’s going to burst if
he doesn’t get to whisper to you.’’ Freeman and the
petitioner then had a brief discussion off the record, but
nothing further was mentioned about the petitioner’s
testifying, and the petitioner did not address the court
about his desire to testify. The court denied the petition-
er’s substitute motion to withdraw his guilty pleas.
The petitioner testified at the habeas trial that Free-
man unilaterally decided not to put him on the stand
to testify at the hearing. In contrast, Freeman testified
that he did discuss this decision with the petitioner and
‘‘strongly counseled’’ him against testifying and that the
petitioner agreed with him. Freeman testified that he
felt the petitioner would hurt his case by testifying at
the hearing because he was not in control of his anger.
In denying the petitioner’s claim of ineffective assis-
tance of counsel, the habeas court credited Freeman’s
testimony that he advised the petitioner not to testify
and that the petitioner heeded this advice, and it further
noted that ‘‘[t]he petitioner did not attempt to take the
stand or voice any objection when Attorney Freeman
indicated to the court that he was not calling the peti-
tioner. This is a decision of litigation strategy that is
presumptively reasonable, and which the petitioner has
not rebutted.’’
We note that ‘‘[a]lthough a defendant has the right
to testify on his or her behalf, that privilege is not
triggered unless he or she takes some affirmative action
regarding his right to testify. . . . The accused must
act affirmatively. While the due process clause of the
Fifth Amendment may be understood to grant the
accused the right to testify, the if and when of whether
the accused will testify is primarily a matter of trial
strategy to be decided between the defendant and his
attorney.’’ (Citations omitted; internal quotation marks
omitted.) State v. Hobson, 68 Conn. App. 40, 45, 789
A.2d 557, cert. denied, 260 Conn. 910, 796 A.2d 557
(2002). In the habeas court, the petitioner failed to dem-
onstrate that Freeman prevented him from testifying
or that his advice to the petitioner not to testify was
deficient. Rather, the evidence credited by the habeas
court was that Freeman strongly urged the petitioner
not to testify, that there was a reasonable basis to the
advice, and that the petitioner ultimately acceded to
this advice.
Accordingly, we conclude that the habeas court did
not err in finding that the petitioner had not satisfied
his burden of proving that Freeman’s performance was
constitutionally deficient as to this claim.
III
The petitioner’s third claim on appeal is that the
habeas court abused its discretion when it denied his
petition for certification to appeal from the court’s
rejection of his claim that his criminal cases were vin-
dictively prosecuted by O’Brien. Specifically, the peti-
tioner contends that O’Brien withdrew a favorable plea
offer because the petitioner hired an attorney and filed
a request for a bond hearing and discovery motions.
The respondent argues that the habeas court correctly
concluded that the petitioner failed to show that O’Brien
engaged in vindictive prosecution. We agree with the
respondent.
We begin with our standard of review relevant to
this particular claim. ‘‘A . . . court’s factual findings
on prosecutorial vindictiveness are reviewed for clear
error and the legal principles which guide the . . .
court are reviewed de novo.’’ (Internal quotation marks
omitted.) State v. Lee, 86 Conn. App. 323, 326, 860 A.2d
1268 (2004), cert. denied, 272 Conn. 921, 867 A.2d
839 (2005).
In order to succeed on a claim of prosecutorial vindic-
tiveness in the pretrial setting, ‘‘the [petitioner] must
show actual vindictiveness on the part of the prosecu-
tor. To establish an actual vindictive motive . . . the
[petitioner] must show that (1) the prosecutor harbored
genuine animus toward the [petitioner], or was pre-
vailed upon to bring the charges by another with animus
such that the prosecutor could be considered a stalking
horse, and (2) [the petitioner] would not have been
prosecuted except for the animus.’’ (Internal quotation
marks omitted.) Id., 328.
The following additional facts are relevant to our
disposition of this claim. On April 11, 2007, after the
petitioner was arrested on a fourth criminal file, O’Brien
offered the petitioner a nine month sentence in
exchange for the petitioner’s guilty plea to one count
of sexual assault in the second degree. The petitioner,
who was self-represented at the time, asked for time
to consider the offer, to which the court, Prescott, J.,
stated: ‘‘I want you to understand . . . that if I give
you a month continuance to consider the offer, that
nothing else is going to be happening on your case
during that time period.’’ With the petitioner’s confirma-
tion that he understood, the court gave him until May
9, 2007, to accept or reject the state’s offer.
On April 17, 2007, with the offer still pending, Attor-
ney Aaron Romano entered an appearance on behalf
of the petitioner on all four files and filed discovery
motions and a motion for bond reduction. At a hearing
on the bond reduction motion on April 24, 2007, O’Brien
stated ‘‘there is no offer on the table at this time. But
my understanding is that this was continued so that
[the petitioner] would consider an offer and nothing
was going to be done in between. From the state’s
vantage point from bringing in counsel, filing additional
request for discovery, the federal action, the request for
the bond reduction, that [a]ffects the state’s position.’’
O’Brien testified at the habeas trial that he withdrew
the offer on April 24, 2007, because the petitioner vio-
lated the agreement that there would be ‘‘[n]o motions,
no changes, no activity on the file other than we come
in May [9], accept or reject.’’
In denying the petitioner’s claim of prosecutorial vin-
dictiveness, the habeas court found that the claim was
‘‘contrary to the record’’ and found ‘‘no credible evi-
dence of vindictiveness.’’ In so finding, it relied on the
fact that both the court and O’Brien stated on the record
that the April 11 offer was contingent on there being
no intervening circumstances4 and the ‘‘appearance of
Attorney Romano and the filing of motions constituted
intervening circumstances.’’
On the basis of our review of the record, we conclude
that the habeas court did not err in finding that the
petitioner had not satisfied his burden of proving that
his cases were vindictively prosecuted by O’Brien.
In light of the foregoing, we conclude that the habeas
court did not abuse its discretion in denying the petition
for certification to appeal because the petitioner has
failed to show that his claims involve issues that are
debatable among jurists of reason, that a court could
resolve the issues in a different manner, or that the
questions are adequate to deserve encouragement to
proceed further.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The petitioner asserted nine other claims in his second amended petition
for a writ of habeas corpus, all of which were denied by the habeas court.
Because he did not pursue any of those claims on appeal, we deem them
abandoned.
2
During trial, the court orally dismissed some of the claims and reiterated
those dismissals in its written decision.
3
We caution that in reaching this conclusion, we do not hold that the
filing of an appearance is the sole determinant of whether an attorney
actually is representing a defendant. Rather, it is one factor to be considered
as part of the circumstances to be assessed by the trial court when confronted
with a question of representation for sixth amendment purposes. Given the
totality of the circumstances in this particular situation, we find no error
in the court’s determination that Bonanno was not acting as the petitioner’s
attorney in the criminal proceedings, and, therefore, the petitioner could
not successfully assert an ineffective assistance of counsel claim regarding
Bonanno’s performance.
4
We note that the habeas court later stated: ‘‘There is no evidence that
Attorney O’Brien withdrew the offer.’’ While this statement appears to be
contradicted by the record, we find no fault with the court’s ultimate conclu-
sion on this issue that the prosecutor’s withdrawal of a plea offer did not
amount to ‘‘credible evidence of vindictiveness.’’