Opinion
No. CV07-4001886 S
June 5, 2009
MEMORANDUM OF DECISION ON RESPONDENT'S MOTION FOR SUMMARY JUDGMENT AND MOTION TO DISMISS
The petitioner initiated the instant matter by way of a pro se petition for a writ of habeas corpus filed July 16, 2007. The petitioner indicated in the pro se petition that he wanted counsel to represent him in this matter. Accordingly, the matter was referred on July 25, 2007 to the Office of the Chief Public Defender (OCPD), Habeas Corpus Unit, for an indigency investigation and appointment of counsel.
On November 20, 2007, the pro se petitioner filed an amended petition. The respondent then filed a request for discovery and a return. The petitioner, who still remained pro se, filed a reply to the return, his own discovery request, as well as a reply to the respondent's discovery request. On April 2, 2008, a motion for appointment of special public defender was filed by the OCPD. On April 4, 2008, the respondent filed a motion to dismiss the petition in its entirety. Although Attorney Mullaney filed his appearance in this matter on April 11, 2008, the motion to appoint him as a special public defender was not granted until April 15, 2008 by the court, A. Santos, J.
On April 22, 2008, the court, Schuman, J, granted the motion to dismiss, indicating that the dismissal was "on the merits and in the absence of objection," and rendered judgment dismissing the petition. On April 30, 2008, counsel for petitioner filed a motion to open judgment of dismissal, which was granted by the court, Schuman, J., on May 13, 2008, thereby restoring the case to the docket.
Thereafter, on January 26, 2009, counsel for the petitioner filed an amended petition alleging ineffective assistance by trial defense counsel, Attorney Roger Anstey. More specifically, the petitioner alleged that Anstey failed to: 1) seek further assistance from the court or otherwise seek to act to protect his client from himself as to his decision making concerning the proffered plea agreement, when Anstey had actual knowledge of a familial and medical nature which called for action under Rule § 1.14 of the Connecticut Rules of Profession Conduct; and 2) seek any intervention of the appropriate Probate Court in jurisdiction over the petitioner, when Anstey should have done so to seek the appointment of a conservator for proper protection of the petitioner and proper consideration of the proffered plea agreement. As relief the petitioner asked that his conviction and sentence be vacated, that the criminal case be restored to the docket for further proceedings, and that this court order that the proffered but not accepted plea agreement be restored for the petitioner's renewed consideration and possible acceptance.
The respondent filed an objection to the amended petition, which this court overruled. The respondent was further ordered to file a return on or before February 10, 2009. Additionally, the parties were ordered to be prepared for trial on that date. On January 30, 2009, the respondent filed a motion to dismiss and supporting memorandum of law, which were withdrawn shortly thereafter on February 5, 2009. After the respondent's filing of a request for a mere statement of facts, the petitioner on February 2, 2009, again amended the petition. The operative complaint, captioned "[Third Substituted] Amended Petition," essentially makes the same allegations and seeks the same relief, though now in the context of a claim of ineffective assistance of prior habeas counsel, Attorney William Westcott, for failure to raise claims against trial defense counsel.
On February 3, 2009, counsel for the petitioner filed a pleading captioned "Reply to Motion to Dismiss." Whether or not this reply was responsive to any then pending motion to dismiss, if at all, the reply is a general denial that the petition should be dismissed. The reply argues that it would be improper to dismiss the petition because the petitioner raises a claim that has never been addressed on the merits due to prior habeas counsel's alleged errors.
The court adopted the reply to also apply to the subsequently filed motion for summary judgment.
Shortly thereafter, on February 5, 2009, the respondent filed a pleading captioned "Motion for Summary Judgment and Motion to Dismiss," supported by a memorandum of law. The respondent first argues that summary judgment is warranted because the operative complaint fails to state a claim upon which a habeas court can grant relief. The respondent further posits several reasons why the petition may also be dismissed: first, the petition fails to state a claim upon which habeas corpus relief can be granted; second, the petition is successive and an abuse of the writ; and third, that the claim is collaterally estopped.
On February 9, 2009, the respondent filed a return denying the petitioner's material allegations and that he is entitled to habeas corpus relief. The return additionally raises the affirmative defenses of collateral estoppel, that the petition fails to state a claim upon which relief can be granted, as well as that the petition is successive and an abuse of the writ.
The parties then appeared before this court on February 10, 2009, for a hearing on the respondent's motion for summary judgment and motion to dismiss. In addition to the legal arguments made by the parties, the court heard testimony from Attorney Benjamin Ancona, the petitioner's nephew, Attorney Dennis Ferguson, an expert in Connecticut probate law, as well as the petitioner himself. The court ordered the parties to file simultaneous post-hearing briefs on or before March 10, 2009. The petitioner's brief was filed on March 4, 2009, and the respondent's brief was filed on March 10, 2009.
For the reasons stated more fully below, the motion for summary judgment is granted.
DISCUSSION
The respondent's motion is pleaded in the alternative; consequently, the court will restate the standards for both motions for summary judgment as well as motion to dismiss.
I.
Practice Book § 23-37 provides as follows: "At any time after the pleadings are closed, any party may move for summary judgment, which shall be rendered if the pleadings, affidavits and any other evidence submitted show that there is no genuine issue of material fact between the parties requiring a trial and the moving party is entitled to judgment as a matter of law." "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . ." (Citation omitted.) Martinelli v. Fusi, 290 Conn. 347, 355, 963 A.2d 640 (2009). "The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . ." (Citations omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405, 848 A.2d 1165 (2004).
Practice Book § 23-29 provides in relevant part that: "The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that . . . (2) the petition, or a count thereof, fails to state a claim upon which habeas corpus relief can be granted[.]" A habeas court may also dismiss all or part of a habeas corpus petition if . . ." any other legally sufficient ground for dismissal of the petition exists." Practice Book § 23-29(5). "A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . ." (Internal citations and quotation marks omitted.) Young v. Commissioner of Correction, 104 Conn.App. 188, 193, 932 A.2d 467 (2007), cert. denied, 285 Conn. 907, 942 A.2d 416 (2008). Nevertheless, the petitioner ". . . bears the burden of proving that the court has subject matter jurisdiction." Id.
II.
The court must take the facts to be those alleged in the operative amended petition, including those facts necessarily implied from the allegations, and construe them in a manner most favorable to the petitioner. The operative complaint asserts that the petitioner was convicted after a jury trial of four counts arson in the first degree, in violation of General Statutes § 53a-111, and four counts of attempted arson in the first degree, in violation of General Statutes §§ 53a-49 and 53a-122(a)(2). The petitioner was sentenced to a total effective sentence of twenty-one (21) years incarceration. The petitioner appealed from the judgment of conviction, which was affirmed in State v. Ancona, 256 Conn. 214, 772 A.2d 571 (2001) (per curiam).
The petitioner filed a habeas corpus petition in the judicial district of Danbury (Danbury petition). That petition was assigned docket number CV01-0344400 and tried to the court, (White, J.), which dismissed the petition. The Danbury petition ". . . alleg[ed] that his trial attorney had rendered ineffective assistance of counsel in the underlying criminal case by failing to investigate a potential insanity defense . . . His claim of ineffective assistance of counsel was directed at Roger Anstey, who was the third attorney involved in the petitioner's case before he was discharged and replaced prior to sentencing." (Footnote omitted.) Ancona v. Commissioner of Correction, 100 Conn.App. 283, 285-86, 918 A.2d 283, cert. denied, 282 Conn. 918, 925 A.2d 1099 (2007).
The prior habeas court made the following factual findings: "As a condition of his probation stemming from a 1996 sexual assault conviction, . . . the petitioner received psychotherapy from Jarushid Marvasti, between November 1996, and December 1998. Benjamin Ancona, Jr., the petitioner's nephew, represented the petitioner in the sexual assault case as well as in the arson case beginning in February 1996, until December 1996, when the petitioner terminated the nephew's employment as counsel. The petitioner's subsequent attorney was discharged and replaced by Anstey, who represented the petitioner from approximately August 1998, through April 1999. After trial commenced, Marvasti faxed copies of the petitioner's signed release form and psychiatric treatment notes to Anstey. At trial, Anstey pursued an alibi defense for the petitioner and attempted to show that the fires were a result of natural causes. After the petitioner was found guilty, but prior to sentencing, Anstey noticed that the petitioner became taciturn, withdrawn and concerned about the prison authorities listening in on his private conversations. Anstey moved to have the petitioner evaluated for competency. He believed the petitioner's change in behavior was a result of the latter's unhappiness with the guilty verdict.
"Anstey had an initial meeting with the petitioner on May 27, 1998. At the point when Anstey began representing the petitioner, the latter's criminal case was already on the jury list." Ancona v. Commissioner of Correction, 100 Conn.App. 283, 286 n. 4, 918 A.2d 283, cert. denied, 282 Conn. 918, 925 A.2d 1099 (2007).
"The petitioner was found competent." Ancona v. Commissioner of Correction, supra, 100 Conn.App. 283 n. 5.
"The petitioner offered testimony from Walid Jaziri, a psychiatrist who had treated him between March and June 2001. Jaziri spoke with the petitioner during fourteen one-hour sessions, consulted with his family about his behavior, reviewed a 1986 letter from a physician concerning the petitioner's carbon monoxide induced fainting spell that he experienced in 1985 and reviewed the petitioner's 1999 competency evaluation indicating he was logical, coherent and goal orientated. On the basis of this information, Jaziri opined that the petitioner suffered from bipolar disorder with psychotic features and depression. According to Jaziri, the petitioner's mental health condition developed over a period of years and was probably in place for years before the 1995 arsons. The condition included episodes of hallucinations, impulsiveness, recklessness and a preoccupation with religion. Jaziri was unable to say, however, whether the petitioner experienced any of the symptoms at any particular time prior to 2001, and he could not say whether the petitioner's mental problems qualified him for the insanity defense." Id., at pgs. 286-87.
The prior habeas ". . . court found that Jaziri failed to offer any credible testimony that at the time of the crimes and as a result of mental disease or defect, the petitioner was unable to appreciate the wrongfulness of his acts or to control his conduct within the requirements of the law. Given this lack of credible evidence supporting an insanity defense, the court concluded, it is not reasonably probable that the defense would have resulted in a different outcome at trial." Id., at pg. 290. The Appellate Court ". . . conclude[d] that the court properly found that the petitioner failed to prove his counsel's performance prejudiced the defense." Id.
The Appellate Court did ". . . not determine whether the alleged failure to investigate an insanity defense constituted deficient representation." Ancona v. Commissioner of Correction, supra, 100 Conn.App. 290 n. 8.
The petitioner was represented in the Danbury petition by Attorney William Westcott. "A primary issue in the Danbury habeas was the mental state and status of the petitioner. The Danbury habeas raised the question of the mental fitness of petitioner to have committed the crimes charge[d], and whether trial counsel, then [Attorney] Roger Anstey, should have raised an insanity defense. Considerable live and documentary testimony was placed before the habeas court (Hon. Gary White) as to the mental status of petitioner. In a post-trial brief, petitioner through counsel also attempted to raise the issue of whether petitioner had been mentally competent and capable at the time he rejected a proffered plea agreement to which the State had already indicated it would concur. This proposed plea agreement would have placed the petitioner in the custody of respondent for a period of two (2) years, grossly and astoundingly less than that meted out to him after trial; in fact petitioner would be released.
"This issue was first briefed before the Hon. White post the habeas trial. The issue had not been placed in the Amended Petition upon which the trial was based . . . The Habeas Court Hon. White expressly declined to address on the merits the question of the petitioner's mental capacity, fitness or capability to have properly considered and acted upon the proffered plea agreement, ruling that the matter was not properly before him as not having been placed in the Amended Petition . . . This ruling was upheld as part of the Danbury habeas appeal." (Citations omitted.) Amended Petition, at pgs. 2-3.
"Petitioner in fact was not in any mental or psychiatric condition to competently and properly consider and act upon the proffered plea agreement. This mental or psychiatric condition included documentation that petitioner had spoken to his nephew, Attorney Benjamin Ancona, about the Chinese Army as well as petitioner's belief the world would end on year 2000. Additionally, [Attorney] Anstey had access to extensive notes of Dr. Marvasti attesting to petitioner's impaired mental health. All of his information concerning petitioner's psychiatric condition is more fully set forth in petitioner's appellate brief in AC 26960. Based upon the information available to [Attorney] Anstey and as recited in the record and transcripts of the Danbury habeas, petitioner was in such a mental or psychiatric condition that called for action pursuant to CPB, CT Rules of Professional Conduct, Rule 1.14 Client with Impaired Capacity . . ." Id., at pg. 3.
The petitioner then alleges that Attorney Anstey "[f]ailed to seek further assistance from the Court under Rule 1.14 by consulting with another available Judge other than the trial Judge or seeking any other intervention in the trial Court, or otherwise seek to act to protect his client from himself as to his decision making concerning the proffered plea agreement, when he had actual knowledge of a familial and medical nature from Benjamin Ancona as well as the medical/psychiatric information set out in the materials in AC 26960, which called for action under this rule[.]" Id., at pgs. 3-4. Additionally, Attorney Anstey "[f]ailed to seek any intervention of the appropriate Probate Court in jurisdiction over petitioner, such as a petition to have a conservator of the person appointed for petitioner, when he should have sought such appointment for proper protection of petitioner and proper consideration of the proffered plea agreement." Id., at pg. 4.
According to the petitioner, he did not intentionally waive or decline to pursue these issues in the Danbury habeas. Attorney Westcott fully briefed these issues but, because they were not raised in the amended petition, they were not addressed on the merits. The petitioner now alleges that Attorney Westcott rendered ineffective assistance in the Danbury habeas corpus by not properly pleading these issues. Attorney Westcott's performance, according to the petitioner, fell below the standard of reasonable competence. The petitioner further avers that "it is reasonably probable that [Attorney] Westcott would have prevailed in the habeas court as to the issue concerning [Attorney] Anstey's representation that some means to effectuate the proffered plea agreement would have been effectuated, by conservator or otherwise in the trial court by ad litem guardian e.g., so that the outcome of the trial court case would have been markedly different and far more favorable to the petitioner, as the offered plea agreement was for two (2) years while the ultimate sentence was for twenty-one (21) years." Id., at pg. 5.
The petitioner's post-hearing brief summarizes his claim as follows: "The petitioner makes a single factual and resulting legal assertion, from which he contends that relief should follow . . . In the petitioner's post trial brief in [his Danbury habeas], Attorney Westcott advanced the theory that trial attorney Anstey had rendered deficient representation by failing to act as to petitioner's rejection of a clearly favorable plea offer from the State. This plea offer would have required two years (2) total effective sentence and would have resolved all outstanding charges; the resulting conviction at jury trial resulted in a twenty-one year (21) total effective sentence. This issue was not addressed on the merits by Judge White, as it had not been pled in the amended petition, and that procedural decision was upheld on appeal . . . The petitioner now seeks to join issue with the respondent on the merits of this claim, to wit that Attorney Westcott rendered deficient representation by not effectively pursuing the deficient representation of Attorney Anstey as to the plea offer and petitioner's obvious incompetency in refusing that offer." Petitioner's Brief (March 4, 2009), at pg. 2.
III.
A court may take judicial notice of the record of an antecedent matter involving the identical parties. See, e.g., State v. Carey, 228 Conn. 487, 497, 636 A.2d 840 (1994); State v. Sanko, 62 Conn.App. 34, 44, 771 A.2d 149, cert. denied, 256 Conn. 905, 772 A.2d 599 (2001). The court's decision on the Danbury petition is part of the record in that matter and involved the identical parties. This court will, therefore, take judicial notice of Judge White's memorandum of decision, in particular the following relevant findings of fact.
The petitioner's post-hearing brief implicitly encourages this. Petitioner's Brief (March 6, 2009), at pgs. 1-2.
"The petitioner was born in Italy in 1942 and emigrated to the United States in the early 1960s when he was about nineteen years old. According to Benjamin Ancona, Sr., the petitioner's older brother, the petitioner was severely burned in a fire before coming to this country and while here in Connecticut, experienced a loss of consciousness due to carbon monoxide poisoning in 1985. After the carbon monoxide poisoning, the petitioner had sporadic fainting spells, experienced mood swings, was unresponsive in conversations with his relatives and became very interested in religion. Starting in the late 1980s or early 1990s, the petitioner began attending church often and his thoughts became focused on the subjects of Jesus Christ, Satan, heaven and hell. He would periodically claim that he could see and speak with Jesus and that the apocalypse was coming. His familial relationships became strained as a result of his religious beliefs and he had little contact with his older brother between 1993 and 1995.
"The petitioner pleaded guilty to fourth degree sexual assault in January 1996, and was sentenced to probation. His probation went into violation status due to his failure to cooperate with sex offender treatment and he was eventually continued on probation and ordered to undergo psychotherapy. The petitioner received this psychotherapy from Jamshid Marvasti, M.D. between November 1996 and December 1998. The petitioner's nephew, Attorney Benjamin Ancona, Jr., represented him in the sexual assault case as well as the violation of probation case. Attorney Ancona also represented the petitioner in the arson case between February 6, 1996 and December 2, 1996. When Attorney Ancona represented the petitioner in the sexual assault case, the violation of probation case and the arson case, he was fully aware of the petitioner's behavior and religious beliefs, but never moved for a competency evaluation [in accordance with General Statutes § 54-56d], . . . had the petitioner evaluated to determine the viability of an insanity defense or filed a notice of intent to raise such a defense [in accordance with Practice Book § 40-17 et seq.) . . .
"See § 53a-13. Attorney Ancona did, however, have the petitioner examined by a Dr. Mantell, who evaluated the petitioner to determine whether he was capable of forming the requisite intent to commit the crime of sexual assault in the fourth degree in violation of § 53a-73a." Ancona v. Warden, Superior Court, judicial district of Danbury, Docket No. CV01-0344400 (March 25, 2003, White, J.) ( 2003 Ct.Sup. 3971, 3973 n. 5).
"During the approximate ten month period when Attorney Ancona represented his uncle in the arson case, Attorney Ancona engaged in pre-trial discovery and plea negotiations with the state's attorneys. At one point, he discussed a potential `no time' offer with the state, but ultimately received a judicial pre-trial offer of eight years to serve in September 1996. At that time, the petitioner rejected the offer and Attorney Ancona put the case on the jury list. The petitioner refused the plea bargain because he professed his innocence and believed that God would protect him. The petitioner became dissatisfied with his nephew's representation, discharged him, and in December 1996, replaced him with Attorney Theodore Pappas. During Pappas's tenure as counsel for the petitioner, Pappas never moved to have the petitioner evaluated for competency, had him evaluated for a potential insanity defense or filed the requisite notice to raise an insanity defense. The petitioner discharged Pappas and replaced him with Attorney Roger Anstey, who was the petitioner's lawyer from approximately August 1998 through April of 1999. Anstey represented the petitioner at the arson trial, but the petitioner fired him and hired yet another attorney to represent him at sentencing. Before Anstey was replaced, however, he successfully moved to have the petitioner evaluated for competency. Anstey made this motion after the trial but prior to sentencing because when he went to see the petitioner in jail in preparation for the pre-sentence investigation report, . . . the petitioner became taciturn, withdrawn and concerned about the prison authorities listening in on his private conversations. After seeing this change in the petitioner's behavior, Anstey asked for a written competency evaluation to ensure a `decent' pre-sentencing report for his client. Anstey believed that the petitioner's changed behavior flowed from the latter's unhappiness with the guilty verdict.
"The offer was 15 years suspended after 8 years imprisonment, with 5 years of probation." Id., at pg. 3973 n. 7.
"Anstey had an initial or `intake' meeting with the petitioner on May 27, 1998. At the point when Anstey began representing the petitioner, the latter's criminal case was already on the jury trial list." Id., at pg. 3973 n. 8.
"Prior to the criminal trial, which commenced on January 25, 1999, Anstey reviewed the contents of the states' file, including the police reports, expert reports, witness statements and photographs. He also reviewed a July 28, 1995 civil deposition transcript in which the petitioner testified about insurance loss claims he made in relation to two of the subject fires in the criminal case. Anstey spent between twenty and twenty-five hours speaking with the petitioner about the evidence, the potential defenses and the maximum prison sentence that could be imposed in the event of a conviction. Anstey also spoke with the petitioner about at least two defenses which were actually employed at trial, one based on a claim that the fires were `natural' (accidental) and the other being an alibi defense. Anstey and the petitioner also discussed raising a third-party culpability defense, but the lawyer did not pursue it because the petitioner did not produce any evidence which might support such a claim. The petitioner, however, did approve the strategies which were actually used at trial by cooperating with the public adjustor who testified as a defense expert and by providing Anstey with the names of alibi witnesses who testified. At all times prior to trial, the petitioner assisted Anstey in preparing the defense, communicated with him in a rational manner and understood the nature of the criminal court proceedings. Anstey never saw the petitioner behave in a bizarre or paranoid fashion. He did notice that the petitioner was an extremely religious man who often read the Bible, but did not perceive this behavior as an indication of mental illness. The petitioner appeared to be mentally healthy, competent pursuant to the relevant legal standards and in control of his actions.
"While preparing for trial, Anstey negotiated a plea offer of two years to serve. Both Anstey and Attorney Ancona, who frequently spoke with Anstey about the petitioner's case and agreed that the offer was favorable, encouraged the petitioner to accept it, but the petitioner refused it because he insisted he was innocent. The petitioner knew the consequences of rejecting the offer. He even signed a letter, given to him by Anstey, indicating that he could be imprisoned for 120 years if convicted.
"The offer was 10 years suspended after 2 years imprisonment, with 5 years of probation." Id., at pg. 3974 n. 10.
"When Attorney Ancona spoke with Anstey before trial about the petitioner's case and the two-year offer, Attorney Ancona did not express his concerns about his uncle's mental health or suggest that Anstey have the petitioner evaluated by a mental health care professional for the purpose of investigating a psychiatric defense. Nor is there any evidence that prior to trial any of the petitioner's other family members or Pappas expressed such concerns or made such suggestion to Anstey.
"After the jury was selected and the evidence started in January 1999, Marvasti faxed copies of the petitioner's signed release form and psychiatric treatment notes to Anstey. There is no evidence, however, that Anstey requested such records. Anstey testified that he did not recall doing so and the release form does not indicate by whom the records were requested. It is clear, however, that Anstey received and probably reviewed such records, which are mostly illegible, on or about February 4, 1999 while the petitioner's criminal trial was in progress." (Footnotes omitted.) Ancona v. Warden, Superior Court, judicial district of Danbury, Docket No. CV01-0344400 (March 25, 2003, White, J.) ( 2003 Ct.Sup. 3971, 3972-75).
IV.
As previously indicated, the court heard testimony from Attorneys Ancona and Ferguson, as well as from the petitioner. The petitioner's post-hearing brief indicates that these three witnesses testified ". . . for the purpose of establishing a `question of fact' with regard to the petitioner's case." Petitioner's Brief (March 4, 2009), at pg. 1. As with the allegations in the amended petition and the factual findings made by the prior habeas court, this court will, for purposes of the summary judgment motion, view their testimony in the light most favorable to the petitioner. The court will, accordingly, briefly summarize the three witness's relevant testimony.
Attorney Ancona testified that the first offer by the state was for the petitioner to enter an Alford guilty plea and receive a fully suspended sentence. Shortly prior to trial, the state's offer to resolve to matter via plea agreement would have resulted in a sentence of two years to serve. Attorney Ancona conceded that the petitioner's family, not just he as relative representing the petitioner in his criminal matter, could have sought a conservatorship. Attorney Ancona further conceded that an Alford plea, in which the petition would not have admitted to the facts alleged by the state, would have permitted the petitioner to pursue a civil action against the insurance company that had insured the premises damaged by fire.
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (accused may consent voluntarily, knowingly and understandingly to imposition of prison sentence even while refusing to admit participation in crime).
Attorney Ferguson was called by the petitioner as an expert in probate law. He testified that there are two types of conservators: of the estate and of the person. The standard for conservatorship is lower than the competency determination made in criminal cases. Thus, a person's inability to handle civil matters is distinct and distinguishable from a person's ability to assist counsel or the defense. Attorney Ferguson believes that the petitioner would have qualified for conservatorship of both the person and the estate. Attorney Ferguson conceded that when probate courts address whether a conservatorship is warranted, the individual's competence, as understood in the criminal context, is not at issue. In his more than forty-year experience with probate matters, Attorney Ferguson is not aware of a conservator ever having been appointed for a defendant in a criminal matter.
This is not surprising, as a conservator's statutory authority over a respondent incapable of handling his or her affairs is limited. See General Statutes §§ 45a-644 (b) (d), and 45a-656. A review of the statutes governing conservators, General Statutes §§ 45a-644 et seq., shows that the role of a conservator is in the civil arena. A conservator may have the authority to hire an attorney for an individual who is not capable of handling his or her own affairs, but this is very distinct from an attorney's authority in a representational capacity. Even then, a criminal defense attorney cannot override the decisions that specifically lie within the purview of a competent client.
The petitioner's testimony did not provide any testimony pertinent to the instant discussion.
V.
It is against the foregoing factual backdrop that the petitioner now alleges that Attorney Westcott provided ineffective assistance of habeas counsel by not properly alleging that Attorney Anstey "[f]ailed to seek further assistance from the Court under Rule 1.14 by consulting with another available Judge other than the trial Judge or seeking any other intervention in the trial Court, or otherwise seek to act to protect his client from himself as to his decision making concerning the proffered plea agreement, when he had actual knowledge of a familial and medical nature from Benjamin Ancona as well as the medical/psychiatric information set out in the materials in AC 26960, which called for action under this rule[.]" Amended Petition, at pgs. 3-4. Additionally, Attorney Anstey "[f]ailed to seek any intervention of the appropriate Probate Court in jurisdiction over petitioner, such as a petition to have a conservator of the person appointed for petitioner, when he should have sought such appointment for proper protection of petitioner and proper consideration of the proffered plea agreement." Id., at pg. 4.
"`[A] person convicted of a crime is entitled to seek a writ of habeas corpus on the ground that his attorney in his prior habeas corpus proceeding rendered ineffective assistance.' Lozada v. Warden, 223 Conn. 834, 845, 613 A.2d 818 (1992). When, as here, the petitioner's claim is that prior habeas counsel did not effectively pursue a claim that trial counsel rendered inadequate representation, the following principles apply: `To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective and (2) that his trial counsel was ineffective. A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient . . . Second, the defendant must show that the deficient performance prejudiced the defense. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unworkable . . . Only if the petitioner succeeds in [this] herculean task will he receive a new trial. This new trial would go to the heart of the underlying conviction to no lesser extent than if it were a challenge predicated on ineffective assistance of trial or appellate counsel.' (Citations omitted; internal quotation marks omitted.) Id., 842-43." Stevenson v. Commissioner of Correction, 112 Conn.App. 675, 684-85 cert denied, 291 Conn. 904 (2009).
This court must first determine whether there exists a genuine issue of material fact between the parties requiring a trial. "A material fact is one that will affect the outcome of the case." D'Amico v. Dept. of Correction, 73 Conn.App. 718, 727-28, 812 A.2d 17 (2002), cert. denied, 262 Conn. 933, 815 A.2d 132 (2003), citing and quoting Tovish v. Gerber Electronics, 32 Conn.App. 595, 599, 630 A.2d 136 (1993), appeal dismissed, 229 Conn. 587, 642 A.2d 721 (1994). Given the claimed ineffective assistance by prior habeas counsel, which requires a showing that trial defense counsel was ineffective, the court must determine whether there is a genuine issue of material fact regarding Attorney Anstey's performance. If, and only if, there is a genuine issue of material fact as to Anstey's performance, will a trial be required. The absence of a genuine issue of material fact necessitates granting summary judgment.
VI.
"[T]he constitutional rights of a defendant cannot be waived by his counsel under such circumstances [where the defendant does not want to plead guilty] . . . [This] would shut off the defendant's constitutional right to confront and cross-examine the witnesses against him which he would have an opportunity to do under a plea of not guilty." Jarrett v. Commissioner of Correction, 108 Conn.App. 59, 67, 947 A.2d 395, cert. denied, 288 Conn. 910, 953 A.2d 653 (2008), citing and quoting Brookhart v. Janis, 384 U.S. 1, 7-8, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966). Here, the petitioner insisted he was innocent and did not want to plead guilty. Instead, he required the state to prove, beyond a reasonable doubt, all elements of the charged offenses.
A criminal defendant is presumed to be competent. See General Statutes § 54-56d(b); Jarrett v. Commissioner of Correction, supra, 108 Conn.App. 72. The Jarrett court noted that the Supreme Court decision in State v. Ross, 269 Conn. 213, 849 A.2d 648 (2004), was "helpful to resolving the issue before [the Appellate Court in Jarrett]. [ Ross] demonstrates that a competent, but mentally ill, criminal defendant may choose not to follow the advice of counsel and to choose a course others think clearly is not in his best interest. `The defendant's suicide attempt, his attempt to stipulate to the imposition of the death penalty and his counsel's statements at the hearing on the motion for a competency examination do not compel a different conclusion [that the defendant was unable to assist counsel].' State v. Ross, supra, 269 Conn. 273. `Similarly, the defendant's past attempts to stipulate to the imposition of the death penalty did not raise a reasonable doubt as to his competency, especially in light of the fact that he was found competent . . . at the time he was pursuing the stipulation.' Id. Our Supreme Court concluded with respect to the defendant in Ross that he `not only understood the nature of the proceedings but also was able to communicate with and assist his counsel.' Id. The lesson is that courts may not construe a defendant's decision to proceed to trial as evidence of incompetence merely because others conclude the decision is not in the defendant's best interest." (Emphasis added.) Jarrett v. Commissioner of Correction, supra, 108 Conn.App. 72-73.
The petitioner here is asking this court to do precisely what the Appellate Court instructed courts not to do: construe his decision to proceed to trial as evidence of incompetence because others, whether it be another judge, trial defense counsel, previous and present habeas counsel, might have concluded his decision to proceed to trial was not in his best interest. This the court will not do.
Another troubling aspect of this case is the petitioner's emphasis of the wide disparity between the sentences the petitioner potentially could have obtained via a plea agreement and the eventual sentence imposed subsequent to the jury trial. Such emphasis is, in this court's analysis, misplaced and inappropriate, for it potentially calls into question innumerable criminal cases in which one or more plea offers were refused by a defendant, the matter went to trial, and the defendant ultimately received a sentence longer than the sentence previously offered by the state. As the Appellate Court noted when addressing the habeas court's decision in Jarrett: ". . . implicit in the petitioner's claim that [trial defense counsel] was ineffective is the notion that the reasonableness of the petitioner's rejecting the state's plea offer can be measured by the difference between the possible maximum sentence for [greater charge resulting from the jury trial] and the sentence offered by the state for a plea [of a lesser charge]." Jarrett v. Commissioner of Correction, supra, 108 Conn.App. 67 n. 12.
Taken to their logical and yet absurd conclusion, the petitioner's arguments, when viewed in the post-conviction and sentencing perspective of hindsight, would require "competent" criminal defense counsel to have a client's competency evaluated when a good, if not outstanding, plea offer is declined and, instead, the client insists on proceeding to trial. Stated somewhat differently, it turns the constitutional right to maintain one's innocence and hold the state to its burden of proof by proceeding to trial after an attractive plea offer into a mechanical concern for the competence of the person holding steadfast this enshrined constitutional right to continue to plead `not guilty.' In addition to being subversive, this legal gymnastic would turn a constitutional right into a proverbial Achilles heel, a weakness or defect instead of a core constitutional right.
This argument could be extended, furthermore, into the habeas corpus arena. When criminal cases are resolved via plea agreements and eventually challenged by way of a habeas corpus petition, habeas corpus relief, if granted, carries the risk of convictions for more offenses and longer sentences than originally negotiated. Such sentences are not presumptively vindictive. Cf. Connelly v. Commissioner of Correction, 258 Conn. 374, 385, 780 A.2d 890 (2001) ("there is no basis for a presumption of vindictiveness where a second sentence imposed after a trial is heavier than a first sentence imposed after a guilty plea"), citing and quoting State v. Coleman, 242 Conn. 523, 535-39, 700 A.2d 14 (1997). Thus, the argument could be advanced that competent habeas counsel must have a habeas petitioner's competency evaluated, or seek the involvement of another judge or attorney or even a conservator, simply because habeas relief is sought that might result in a significantly longer sentence. The absurdity of such an approach to legal representation and the onus it places on counsel is more than self-evident.
The petitioner was represented in the underlying criminal matter by several attorneys, one of whom was his nephew. None of these attorneys sought to have the petitioner's competency evaluated, with the exception of Attorney Anstey's post-conviction/pre-sentencing request because the petitioner refused to cooperate with the pre-sentence investigation. Additionally, none of the judges or prosecutors, both of whom may request competency evaluations in accordance with § 54-56d, requested such an evaluation. The competency evaluation prior to sentencing concluded that the petitioner was competent, further buttressing the presumption that the petitioner was competent throughout the criminal proceedings.
VII.
To summarize, the petitioner's claims are nothing more than an attempt to measure the reasonableness of a criminal defendant's decision to proceed to trial, gauged by the variance of the offered plea sentence and the sentence imposed after trial. The Appellate Court has explicitly cautioned courts not to "construe a defendant's decision to proceed to trial as evidence of incompetence merely because others conclude the decision is not in the defendant's best interest." Jarrett v. Commissioner of Correction, supra, 108 Conn.App. 72-73. The petitioner here is striving to create such "evidence" premised on the petitioner's "unreasonable" decision to proceed to trial.
Based upon all the foregoing, the court finds that the petitioner's claim of ineffective assistance of counsel of prior habeas counsel, premised on trial defense counsel's purported failures to protect the petitioner from his own decision either under Rule 1.14 or intervention of the Probate court, does not involve any genuine issues of material fact requiring a trial. Viewing the petitioner's pleadings and evidence in the light most favorable to the petitioner, the court concludes that the respondent is entitled to judgment as a matter of law. The petitioner has not shown that there is an evidentiary foundation to demonstrate the existence of a genuine issue of material fact, i.e., a fact that will affect the outcome of the case. Accordingly, the motion for summary judgment shall be granted.
Judgment shall enter denying the petition for a writ of habeas corpus. Counsel for the petitioner shall submit a judgment file to the clerk within thirty (30) days of the date of this decision.
It is so ordered.