DocketNumber: No. CV 93 001708 S
Citation Numbers: 1998 Conn. Super. Ct. 1892, 23 Conn. L. Rptr. 56
Judges: ZARELLA, JUDGE.
Filed Date: 8/19/1998
Status: Non-Precedential
Modified Date: 4/18/2021
The presentence investigation report indicates that at approximately 1 a.m. on April 18, 1991, the petitioner and another perpetrator attempted to rob the victim of money when the petitioner's gun accidentally went off and the victim was shot and killed. Thereafter, the petitioner was arrested for another offense and when questioned by the police confessed to committing the attempted robbery and shooting. (Petitioner's Exhibit 3.) CT Page 1893
On June 5, 1992, the petitioner entered a nolo contendere plea to a charge of felony murder in violation of General Statutes § 53a-54(c).1 After the plea was entered, the court (Damiani J.) found the petitioner guilty. The court advised the petitioner that the state was recommending a sentence of forty-five years. The court also advised the petitioner that he intended to impose a sentence of thirty-five years, but that the petitioner's trial counsel had the right to argue for a lesser sentence at the sentencing hearing. At the sentencing hearing on July 24, 1992, the court sentenced the petitioner to thirty-five years imprisonment. The petitioner is currently in the custody of the respondent.
The court makes the following findings of fact. Trial counsel was experienced in criminal law when he represented the petitioner, having practiced both as a public defender and a private criminal defense attorney. Trial counsel was aware of the petitioner's alcohol problem and focused on this issue throughout his representation of the petitioner. In this regard, trial counsel arranged for the petitioner to meet with a psychiatrist. The petitioner, however, refused to speak with the doctor because the meeting would not have been kept confidential. While trial counsel did not have a specific recollection of reviewing the presentence investigation report with the petitioner at the time of the habeas hearing, it was his general practice to review the report with his clients. Trial counsel knew that the petitioner was estranged from his family, but made an attempt to have family members testify at the sentencing hearing, to no avail. Trial counsel focused on the petitioner's history of alcohol abuse during his argument to the court during the sentencing hearing. Trial counsel created a picture of the petitioner as a victim of his own alcohol abuse and also of a father who abused alcohol and his children before abandoning the family when the petitioner was thirteen years old. Trial counsel urged the sentencing court to consider the petitioner's alcoholism and the role it played in all of the petitioner's criminal activities. Information in the presentence investigation report buttressed trial counsel's argument. The CT Page 1894 court commented on the petitioner's abuse of alcohol in his final comments before issuing the sentence.
In support of his claim, the petitioner presented at the habeas hearing the testimony and report of C. Scott Grove, a psychiatrist, who diagnosed the petitioner in June 1998 as having alcohol dependence. Grove met with the petitioner on February 26, 1998 for six hours, spoke with the petitioner's mother by telephone on June 13, 1998 for thirty minutes and reviewed documents related to this matter. Grove testified that the petitioner met all the criteria of alcohol dependence and that the petitioner's alcoholism, depression and despair impaired the petitioner's ability to function as a law-abiding citizen at the time of the crime.
"[T]he sentencing process is a critical stage of a criminal trial." James L. v. Commissioner of Correction,
To prove that his counsel's performance was deficient, the petitioner must demonstrate that trial counsel's representation fell below an objective standard of reasonableness. Aillon v.Meachum,
With respect to the prejudice component of the Strickland test, the petitioner must demonstrate that "counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." Strickland v. Washington, supra,
The court finds that the petitioner has failed to prove that trial counsel's actions on his behalf fell below an objective standard of reasonableness. As mentioned above, trial counsel attempted to provide psychiatric evidence, but was rebuffed by the petitioner who refused to meet with the psychiatrist. Trial counsel attempted to contact estranged family members, but they were not available to assist the petitioner. A review of the sentencing transcript reveals that trial counsel presented a troubled man who had had a lifelong problem with alcohol. The petitioner has failed to establish that these actions by trial counsel were deficient. The court finds trial counsel's efforts to mitigate the sentence to be imposed on the petitioner were reasonable and within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.
The court makes the additional finding that even if trial counsel's actions were deficient, the petitioner was not prejudiced by them. The court finds that, even if trial counsel had been able to convince the petitioner to meet with a psychiatrist who would have provided the opinion offered by Grove CT Page 1896 at the habeas hearing, it is reasonably probable that the sentence would have been the same. A review of the sentencing transcript reveals that the court was impacted by trial counsel's focus on the petitioner's alcoholism. The court stated that while forty-five years is not excessive, he would impose a sentence of thirty-five years. since a jury might have accepted the argument of intoxication and found the petitioner could not have formed the necessary intent to commit the crime.
Thus, the court finds the petitioner received effective assistance of counsel at sentencing as required by our state and federal constitutions.
A claim of a failure by the trial court generally is an issue for a direct appeal. State v. Phidd,
Trial counsel testified at the habeas hearing that he did not recollect discussing the sentence review with the petitioner nor helping him with the application. Trial counsel also testified that he was not sure of the procedure involved for a sentence review. A review of the transcript of the sentencing hearing does not indicate that the court or the clerk gave the petitioner the sentence review application at the conclusion of the sentencing and no evidence was produced to rebut the petitioner's contention that he never received the requisite sentence review information.
"Under Connecticut criminal procedure, after the imposition CT Page 1897 of sentence by the trial court, one who has been sentenced to imprisonment for [three year's] or more may apply for a review of that sentence by the review division. General Statutes [§]
The court must now decide if such deficiency resulted in actual prejudice to the petitioner. Strickland v. Washington,supra,
Thus, the court finds the petitioner was deprived of his constitutional right to the effective assistance of counsel as it pertains to access to sentence review.
A defendant who has not filed a timely application for sentence review through no fault of his own has been allowed to file a late application. See James L. v. Commissioner ofCT Page 1898Correction, supra,
Thus, the court denies the request to vacate the sentence and grants the request to allow the petitioner to apply to the sentence review division. The petitioner may file such application within thirty days from the date of this decision.
ZARELLA, J.