Misenti v. Commissioner of Correction

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MICHAEL MISENTI v. COMMISSIONER
OF CORRECTION
(AC 37091)
DiPentima, C. J., and Gruendel and Keller, Js.*
Argued January 4—officially released May 17, 2016
(Appeal from Superior Court, judicial district of
Tolland, Bright, J.)
Jeanne M. Zulick, assigned counsel, for the appel-
lant (petitioner).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and David M. Carlucci, assistant state’s attorney,
for the appellee (respondent).
Opinion
DiPENTIMA, C. J. The petitioner, Michael Misenti,
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 certification to appeal from the determina-
tion that Richard Grabow, the petitioner’s trial counsel,
had not rendered ineffective assistance, and (2) improp-
erly denied the motion to withdraw from the case filed
by the petitioner’s habeas counsel, David B. Rozwaski,
at the start of the habeas trial. We dismiss the petition-
er’s appeal.
The court set forth the following factual findings and
procedural history in its memorandum of decision. In
November, 2013, while operating his computer, the peti-
tioner visited an adult only website ‘‘through which he
sought customers for gay pornographic videos.’’
Through that website, he met and began communicating
with the victim, whom the petitioner believed to be an
adult but was, in fact, a fourteen year old male. The
petitioner made arrangements to meet the victim in
person for the purpose of selling him pornographic
videos.
The petitioner went to the victim’s home and pro-
vided him with a bag containing videos and a ‘‘sex toy.’’
The victim later told the police that the petitioner had
kissed him, had touched his buttocks and had placed
his mouth on the victim’s penis. Prior to his arrest or
being in custody, the petitioner admitted to the police
that he had kissed the victim. At the habeas trial, how-
ever, the petitioner denied that any physical contact
had occurred.
The petitioner was arrested and charged with attempt
to commit sexual assault in the second degree in viola-
tion of General Statutes §§ 53a-49 and 53a-71, sexual
assault in the fourth degree in violation of General Stat-
utes § 53a-73a, use of a computer to entice a minor in
violation of General Statutes § 53a-90a, and risk of
injury to a child in violation of General Statutes § 53-
21. The petitioner retained Grabow to represent him.
Grabow filed a broad discovery request and had
numerous discussions with prosecutors regarding a
plea agreement. Grabow also met with the petitioner
several times and explained the offers from the state.
He also explained the elements of the charges to the
petitioner, as well as the evidence that the state
intended to introduce at trial. Although the petitioner
maintained that he had not violated any criminal statute
because he had believed that the victim was at least
sixteen or seventeen years old, Grabow explained that
a mistake about the victim’s age was not a defense to
the charges of risk of injury and sexual assault in the
fourth degree.1
On September 8, 2004, the petitioner and Grabow
appeared for jury selection. At the outset, the criminal
trial court told the petitioner that he had to decide if
he was going to accept the state’s offer or proceed to
trial. The court further explained that once the jury
selection process began, ‘‘all bets are off on whatever
plea bargaining has occurred before today.’’ After some
brief discussion, it notified the parties that jury selec-
tion would start after a thirty minute recess.
After the recess, the court noted that parties had
reached an agreement. As noted by the habeas court,
‘‘[t]he petitioner agreed to accept the [state’s] offer so
long as he could do so through a plea of nolo contendere
and under the Alford doctrine.’’2 The state filed a substi-
tute information charging the petitioner with risk of
injury to a child in violation of § 53-21 (a) (2) and sexual
assault in the fourth degree in violation of § 53a-73a. The
parties agreed that the petitioner would be sentenced to
ten years incarceration, execution suspended after six
months, ten years probation, no contact with the victim,
and sex offender registration and treatment.
The court then made the following statement to the
petitioner: ‘‘Mr. Misenti, you’ve entered a nolo plea.
That means you’re not agreeing to any of the facts stated
by the state’s attorney just now, all right? It also gives
you a certain amount of protection if there’s any civil
suits. But you know that, under those facts, I will be
making a finding of guilty under the charges as well the
facts, through you’re not admitting—or even denying, at
this time—to the point that you just don’t want to take
the chance of going to trial and taking the chance that
a jury might feel otherwise and the state might be able to
get a conviction; is that true?’’ The petitioner responded
that he was not guilty of these charges and that ‘‘[t]his
thing is taking a tremendous physical and emotional
toll on me, and I feel I cannot proceed with a trial.’’ He
further explained that he was not mentally or physically
capable of proceeding. The court then explained the
differences between a nolo contendere plea and a plea
made pursuant to the Alford doctrine.
The petitioner maintained that he did not believe that
he was guilty of the charges and that the only reason
that he could not proceed was the emotional and physi-
cal toll on him. The court replied that it would not
accept an Alford plea. Grabow indicated that the Alford
plea would be withdrawn. The court stated: ‘‘The nolo
does not require that requirement; so it’s a nolo plea,
for the reasons stated by [the petitioner]. All right. Okay.
So solely nolo. All right. Have you had enough time to
think about this?’’ The petitioner responded: ‘‘Not really.
I would have liked more time, but my attorney told me
that I had to make a decision now.’’ The court responded
that it could not accept the nolo contendere plea if the
petitioner felt he did not have enough time to think
about it. The court agreed to Grabow’s suggestion of a
brief recess. During this second recess, the petitioner
went to his car and ingested Klonopin, his prescribed
antianxiety medicine. Grabow knew that the petitioner
was receiving treatment for mental health issues but
the petitioner did not inform him that he took Klonopin
during the recess.
After the proceeding resumed, Grabow indicated that
a written plea of nolo contendere had been filed. The
state then offered the following recitation of facts. The
victim and the petitioner had been in contact via an
online instant messaging system and then spoke on the
telephone. The petitioner arranged an in person meeting
at the victim’s home. ‘‘While in the house . . . [the
petitioner] and [victim] allegedly kissed, and the [peti-
tioner] allegedly touched the [victim’s] buttocks; he
pulled away. He then was, allegedly, Your Honor,
according to the statement, allegedly put his mouth on
the [victim’s] penis. He then was told to leave, Your
Honor, by the [victim]. He did comply with that and
left . . . .’’
The petitioner informed the court that he did not
agree with the facts as stated by the prosecutor. The
court responded: ‘‘That’s the nolo plea. You’re not
admitting to those facts . . . .’’ The petitioner inter-
rupted the court and stated that the charges were ‘‘abso-
lutely false.’’ The court, after pointing out that a nolo
plea afforded certain protections in a possible civil
action, iterated that ‘‘[t]hat’s what the nolo plea is.
You’re not admitting anything . . . .’’ The court then
conducted a plea canvass where the petitioner acknowl-
edged, inter alia, that he had enough time to consider
the plea, that he had spoken with his attorney, that
Grabow had explained the charges against him and the
potential penalties that he faced. The petitioner stated
that he understood everything that the court had said
and that no one had forced him to make the decision
to enter the nolo plea. The court accepted the plea as
made voluntarily, intelligently and with the effective
assistance of counsel.
In the following weeks, the petitioner changed his
mind and told Grabow that he wanted to withdraw
the plea. On October 13, 2004, Grabow wrote to the
petitioner to inform him that he would not file the
motion to withdraw until he spoke to the petitioner on
October 19, 2004. The petitioner ultimately decided that
he did not want the plea vacated, so Grabow did not
file the motion.
The sentencing hearing occurred on January 20, 2005.
At the outset, the prosecutor recommended a ten year
period of incarceration, execution fully suspended. The
prosecutor stated that on September 8, 2004, he had
recommended that the petitioner serve six months, but
as a result of further conversation with the victim, he
was now recommending a fully suspended sentence.
The court and the prosecutor also addressed the fact
that the victim had returned to the website and again
misrepresented his age and had made a reference that
he had ‘‘chickened out’’ in his meeting with the peti-
tioner. The court agreed to impose the sentence as
recommended by the prosecutor.
In an amended petition for a writ of habeas corpus,
the petitioner alleged that Grabow has rendered ineffec-
tive assistance of counsel in a variety of ways,3 and
sought to have his conviction vacated and his plea with-
drawn. On February 25, 2014, Attorney Rozwaski filed
a motion to withdraw his appearance as habeas counsel
pursuant to Practice Book § 3-10 (b).
The court held a trial on February 26, 2014, and, at
the outset, addressed Rozwaski’s motion. After hearing
from the petitioner and Rozwaski, the court denied
the motion to withdraw and declined to appoint new
counsel for the petitioner. After further discussion, the
petitioner elected to proceed with Rozwaski as his attor-
ney. During the habeas trial, Rozwaski called Grabow
and the petitioner as witnesses.
On July 2, 2014, the court issued a memorandum of
decision denying the petition for a writ of habeas cor-
pus. Relevant to this appeal, the court determined that
the claim that Grabow had failed to investigate and
discover that the victim was ‘‘still entering websites by
misrepresenting his age even after the petitioner was
arrested’’ was without merit. Specifically, the court
credited Grabow’s testimony that he knew on the morn-
ing of September 8, 2004, prior to the petitioner’s plea,
that the victim continued to engage in such conduct.
The court further observed that Grabow’s knowledge
of this conduct helped him to secure the plea offer that
the petitioner accepted. In regards to the claim that
Grabow had failed to explain the elements of the crimes
to which the petitioner pleaded guilty, or the factual
bases for those charges, the court credited Grabow’s
testimony to the contrary. The court also rejected the
claim that Grabow improperly had failed to file a motion
to withdraw the guilty plea, noting that although the
petitioner had asked Grabow to file such a motion,
there was evidence that the petitioner changed his mind
prior to sentencing and did not want such motion filed.
With respect to the petitioner’s claim that his plea had
been made while under the effects of Klonopin, the
court noted that there was no evidence that the peti-
tioner had taken this medication, nor was there evi-
dence regarding how quickly it took effect, and what
effect it had. ‘‘Given the short nature of the recess,
approximately twelve minutes, the court cannot just
assume that the petitioner was under its effects at the
time he entered his plea.’’ Finally, the court concluded
that the petitioner had failed to sustain his burden of
establishing that he would have insisted on going to
trial.
On July 10, 2014, the petitioner filed his petition for
certification to appeal the denial of his petition for a
writ of habeas corpus. He set forth five specific grounds
as the bases for his appeal.4 The court denied the peti-
tion for certification on July 16, 2014. This appeal
followed.
I
The petitioner first claims that the habeas court
abused its discretion in denying certification to appeal
from the determination that Grabow had not rendered
ineffective assistance of counsel. Specifically, the peti-
tioner argues that Grabow was ineffective by failing to
(1) investigate the victim’s credibility and (2) move for
a continuance before the plea canvass and later to with-
draw the petitioner’s plea because it was not made
knowingly, intelligently and voluntarily. We conclude
that the court did not abuse its discretion in denying
certification to appeal the claim of ineffective assis-
tance of counsel.
We begin by setting forth our standard of review
following the denial of certification to appeal from the
denial of a petition for a writ of habeas corpus. ‘‘In
Simms v. Warden, 229 Conn. 178, 187, 640 A.2d 601
(1994), [our Supreme Court] concluded that . . . [Gen-
eral Statutes] § 52-470 (b) prevents a reviewing court
from hearing the merits of a habeas appeal following
the denial of certification to appeal unless the petitioner
establishes that the denial of certification constituted
an abuse of discretion by the habeas court. . . . This
standard requires the petitioner to demonstrate that the
issues 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 encourage-
ment to proceed further. . . . A petitioner who estab-
lishes an abuse of discretion through one of the factors
listed above must then demonstrate that the judgment
of the habeas court should be reversed on its merits.
. . . In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous.’’ (Emphasis in original;
internal quotation marks omitted.) Turner v. Commis-
sioner of Correction, 163 Conn. App. 556, 562–63,
A.3d (2016); see also Fine v. Commissioner of Cor-
rection, 163 Conn. App. 77, 80–81, A.3d , cert.
denied, 320 Conn. 925, A.3d (2016).
‘‘A criminal defendant is constitutionally entitled to
adequate and effective assistance of counsel at all criti-
cal stages of criminal proceedings. . . . This right
arises under the sixth and fourteenth amendments to
the United States constitution and article first, § 8, of
the Connecticut constitution. . . . As enunciated in
Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984)], this court has stated: It
is axiomatic that the right to counsel is the right to the
effective assistance of counsel. . . . A claim of ineffec-
tive assistance of counsel consists of two components:
a performance prong and a prejudice prong. To satisfy
the performance prong . . . the petitioner must dem-
onstrate that his attorney’s representation was not rea-
sonably competent or within the range of competence
displayed by lawyers with ordinary training and skill
in the criminal law.’’ (Internal quotation marks omitted.)
Ebron v. Commissioner of Correction, 307 Conn. 342,
351, 53 A.3d 983 (2012), cert. denied sub nom. Arnone
v. Ebron, U.S. , 133 S. Ct. 1726, 185 L. Ed. 2d
802 (2013); see also Thiersaint v. Commissioner of
Correction, 316 Conn. 89, 100–101, 111 A.3d 829 (2015).
‘‘Under . . . Hill [v. Lockhart, 474 U.S. 52, 106 S. Ct.
366, 88 L. Ed. 2d 203 (1985)] . . . which . . . modified
the prejudice prong of the Strickland test for claims
of ineffective assistance when the conviction resulted
from a guilty plea, the evidence must demonstrate that
there is a reasonable probability that, but for counsel’s
errors, [the petitioner] would not have pleaded guilty
and would have insisted on going to trial.’’ (Internal
quotation marks omitted.) Patterson v. Commissioner
of Correction, 150 Conn. App. 30, 35, 89 A.3d 1018
(2014); see also Carraway v. Commissioner of Correc-
tion, 317 Conn. 594, 600 n.6, 119 A.3d 1153 (2015).
Finally, we note that ‘‘[t]he conclusions reached by
the trial court in its decision to dismiss [a] habeas peti-
tion are matters of law, subject to plenary review. . . .
[When] the legal conclusions of the court are chal-
lenged, [the reviewing court] must determine whether
they are legally and logically correct . . . and whether
they find support in the facts that appear in the record.’’
(Internal quotation marks omitted.) Grant v. Commis-
sioner of Correction, 121 Conn. App. 295, 298, 995 A.2d
641, cert. denied, 297 Conn. 920, 996 A.2d 1192 (2010).
We now address the specifics of the petitioner’s
appeal.5 First, the petitioner claims that Grabow was
ineffective by failing to investigate the victim’s credibil-
ity and his continued misrepresentation of his age in
order to access the website, especially given the com-
ments of the prosecutor during the sentencing proceed-
ing. Specifically, the petitioner contends that he was
not aware of this information regarding the victim and,
if he had been, he would have proceeded to trial. We
are not persuaded.
The habeas court made two credibility determina-
tions relevant to this claim. First the court concluded
that Grabow ‘‘testified credibly that he knew on the
morning of September 8, 2004, before the petitioner
entered his plea, that the victim was still engaging in
such activity.’’ The court further concluded that the
petitioner’s contention that he was unaware of the vic-
tim’s ongoing activities until two years later was not
credible. ‘‘In fact, the transcript of the petitioner’s sen-
tencing makes it clear that everyone present, including
the petitioner, knew that the victim was still visiting
such websites.’’
‘‘[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.)
Mincewicz v. Commissioner of Correction, 162 Conn.
App. 109, 112, 129 A.3d 791 (2015); see Brown v. Com-
missioner of Correction, 161 Conn. App. 770, 773, 129
A.3d 172 (2015), cert. denied, 320 Conn. 916, 131 A.3d
751 (2016); see also Couture v. Commissioner of Cor-
rection, 160 Conn. App. 757, 770, 126 A.3d 585 (axiom-
atic that appellate court cannot pass on credibility of
witnesses), cert. denied, 320 Conn. 911, 128 A.3d 954
(2015). We refrain from invading the province of the
habeas court to determine the credibility of Grabow
and the petitioner, and employ our customary deference
as a reviewing court. Accordingly, we conclude that the
petitioner’s claim of ineffective assistance for the failure
to investigate the credibility of the victim fails and, thus,
that the court did not abuse its discretion in denying
certification to appeal this issue.
Second, the petitioner claims that Grabow was inef-
fective for failing to move for a continuance before the
plea canvass and subsequently for failing to move to
withdraw his plea. Specifically, the petitioner contends
that he did not understand the plea due to his ingestion
of Klonopin and Grabow’s failure to explain the charges
adequately. With respect to the latter, the court deter-
mined that Grabow testified credibly that he had fully
explained the elements of the crimes of which the peti-
tioner pleaded, as well as the factual bases for the
charges. Later, the court noted that ‘‘[t]here is no ques-
tion that [the petitioner] understood the proceedings
and what he was doing.’’ Deferring to the habeas court
on matters of credibility, we conclude that this argu-
ment must fail.
With respect to the petitioner’s claim that he did not
make a knowing, intelligent and voluntary plea as a
result of his ingestion of Klonopin during a recess in
the proceedings, the court rejected it for several rea-
sons. First, there was no evidence that Grabow knew
that the petitioner had taken Klonopin during the
recess. Second, the petitioner failed to present evidence
during the habeas trial regarding ‘‘how quickly Klonopin
becomes effective and what effects it has. Given the
short nature of the recess, approximately twelve
minutes, the court cannot just assume that the peti-
tioner was under its effects at the time he entered his
plea.’’ Third, the court concluded that the record and
the evidence presented during the habeas trial estab-
lished that the petitioner was not impaired at the time
of the plea. Specifically, it found that the petitioner was
lucid and appeared to understand the court’s questions
during the canvass.
We agree with the habeas court that the petitioner’s
claim fails as a result of the absence of evidence regard-
ing the time it takes for Klonopin to affect an individual.
It is not enough for the petitioner to allege that his plea
was not intelligently, knowingly and voluntarily made
due to his use of Klonopin. He was required to establish
that he actually was impaired by his use of that medica-
tion. See Hunnicutt v. Commissioner of Correction,
83 Conn. App. 199, 207, 848 A.2d 1229, cert. denied,
270 Conn. 914, 853 A.2d 527 (2004). As a result of this
evidentiary gap, we cannot conclude that Grabow was
ineffective for not requesting a continuance or moving
to withdraw the plea.
None of the claims regarding Grabow’s performance
is debatable among jurists of reason, could be resolved
in a different manner or deserve encouragement to pro-
ceed further. In other words, the habeas court did not
abuse its discretion in denying certification to appeal
from the denial of the petitioner’s claim that Grabow
provided ineffective assistance of counsel.
II
The petitioner also claims that the court improperly
denied Rozwaski’s motion to withdraw as habeas coun-
sel. Specifically, he argues that the court abused its
discretion because there was a total lack of communica-
tion between himself and Rozwaski that prevented ade-
quate representation. The respondent, the
Commissioner of Correction, counters that this claim
is not properly before this court because it was not
within the list of grounds for appeal attached to the
petition for certification to appeal. We agree with the
respondent.
As we noted previously, the petitioner set forth five
bases for grounds of his appeal from the decision of
the habeas court, all of which pertained to the conduct
of Grabow, not Rozwaski. See footnote 4 of this opinion.
Simply put, the claim regarding the denial of the motion
to withdraw filed by Rozwaski was not part of 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 peti-
tion for certification with respect to that claim.’’ Fine
v. Commissioner of Correction, supra, 163 Conn. App.
82. Review of this claim would amount to an ambuscade
of the habeas judge. Tutson v. Commissioner of Correc-
tion, 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,
28 A.3d 1015, cert. denied, 303 Conn. 913, 32 A.3d 966
(2011). Accordingly, we decline to consider it. Fine
v. Commissioner of Correction, supra, 82; Tutson v.
Commissioner of Correction, supra, 216–17; Perry v.
Commissioner of Correction, supra, 797.
The appeal is dismissed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
Grabow did opine that the victim’s misrepresentation of his age could
help the petitioner’s case with respect to the charge of sexual assault in
the second degree.
2
‘‘Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed.
2d 162 (1970), a criminal defendant is not required to admit his guilt . . .
but consents to being punished as if he were guilty to avoid the risk of
proceeding to trial. . . . A guilty plea under the Alford doctrine is a judicial
oxymoron in that the defendant does not admit guilt but acknowledges that
the state’s evidence against him is so strong that he is prepared to accept
the entry of a guilty plea nevertheless.’’ (Internal quotation marks omitted.)
State v. Celaj, 163 Conn. App. 716, 718–19 n.3, A.3d (2016).
3
Specifically, the petition alleged that Grabow was ineffective as follows:
‘‘[Grabow] . . . did not investigate the alleged victim’s statements as to
whether or not false information had been provided regarding the victim’s
activities . . . [Grabow] did not seek to suppress the petitioner’s statements
to the police when the petitioner maintained that he had been questioned
without being advised of his rights . . . [t]hat at the time of the petitioner’s
plea, the petitioner informed the court that he was not willing to proceed
and that due to mental health problems, emotional, physical and other issues,
he did not want to go forward with the scheduled trial that day nor with
the proposed plea agreement, and that [Grabow] did not seek a continuance
for the petitioner . . . [Grabow] did not properly explain the factual basis
and the nature of and legal elements of the charges to the petitioner . . .
[Grabow] did not seek to withdraw the petitioner’s guilty pleas when the
petitioner stated to the court that he was insisting upon his innocence and
the court had improperly canvassed and accepted the petitioner’s pleas,
despite the petitioner’s insistence upon his innocence . . . [Grabow] did
not seek to determine if the medication that the petitioner was [taking] on
the date of his pleas impacted the petitioner’s ability to knowingly, volunta-
rily and with understanding enter into his guilty pleas and . . . [t]hat the
petitioner did not want to plead guilty and wanted to proceed to trial with
his case, but that [Grabow] did not seek to withdraw the petitioner’s guilty
pleas, nor to vacate the court’s findings after the pleas were improperly
accepted by the court.’’
4
Specifically, the petitioner’s grounds for certification to appeal stated:
‘‘Counsel for the petitioner . . . hereby submits the following grounds upon
which he proposes to seek certification to appeal.
‘‘1. Whether or not the habeas court erred in finding that trial counsel
was not deficient in his failure to conduct a sufficient investigation regarding
the victim’s statements to the police regarding his activities;
‘‘2. Whether or not the habeas court erred in finding that trial counsel
failed to seek a continuance when the petitioner informed him that he was
not prepared to go forward with either a plea nor the trial;
‘‘3. Whether or not the habeas court erred in finding that trial counsel
was not ineffective in explaining the factual and legal basis of the charges to
the petitioner so that the petitioner could make a knowing and voluntary plea;
‘‘4. Whether or not the habeas court erred in finding that trial counsel
had failed to move to withdraw the petitioner’s guilty pleas;
‘‘5. Whether or not the habeas court erred in finding that trial counsel’s
deficient performance was not prejudicial to the petitioner—particularly
when the petitioner insisted that he wanted to have a trial;
‘‘6. Whether or not the habeas court erred in denying the certification to
appeal; and
‘‘7. Such other errors as may become evident after a review of the tran-
scripts and the trial record.’’
5
With respect to the petitioner’s claim regarding Grabow, the habeas
court concluded that the petitioner had failed to establish both the deficient
performance and the prejudice prongs of the Strickland/Hill test.