Opinion
CV144006598S
03-23-2018
John BOSSE (Inmate #291007) v. WARDEN
UNPUBLISHED OPINION
OPINION
Kwak, J., Superior Court Judge
The petitioner initiated the present matter by way of a pro se petition for a writ of habeas corpus filed on September 11, 2014, and amended for the second time by assigned counsel on August 21, 2017. The amended petition raises claims in two counts and challenges the petitioner’s convictions in docket numbers CR01-0196687-S and CR01-0012582-T, judicial district of New Britain, following two separate jury trials. The petitioner is presently serving a total sentence of fifty-five years as a result of the sentences imposed in both underlying criminal matters. The respondent’s return denies the petitioner’s material claims.
The parties appeared before this court on October 11, 2017, for a trial on the merits. The petitioner entered into evidence electronic copies of trial transcripts, copies of exhibit lists, and copies of materials from two mental health experts retained by the defense. The respondent also entered electronic copies of trial transcripts into evidence, as well as a copy of the record on appeal from one of the petitioner’s direct appeals. The petitioner presented the testimony of his former defense counsel, Attorney Robert McKay, and his own testimony in support of his claims. The respondent did not call any witnesses. Both parties filed post-trial briefs.
For the reasons articulated more fully below, the petitioner’s claims are denied.
DISCUSSION
I. Underlying Facts
" On May 9, 2001, the [petitioner] was held for arraignment on an unrelated matter in the holding area of the Bristol courthouse. Because of threats from other prisoners, the [petitioner] was not held in the group cell in the holding area. Instead, he was handcuffed to a metal chair outside of the cells in a corridor approximately four feet wide. The [petitioner’s] right wrist was handcuffed to the arm of the chair, and he wore leg irons on his ankles that were not connected to the chair. The chair was not secured to the floor.
" The victim, judicial marshal Kevin Kelly, was providing security within the holding area. After incitement from prisoners in the adjacent cell, the [petitioner] picked up the metal chair. The [petitioner] held the chair by the arms in front of himself with the legs pointed forward and briskly walked toward Kelly, striking him with the chair. Kelly blocked the chair with his left arm and deflected the chair downward. The chair struck Kelly in his ribs, right hand and shin. The force of the impact drove Kelly, a 245 pound man, against the wall of the holding area. Other judicial marshals then responded and subdued the [petitioner]. Following the attack, Kelly was treated at Bristol Hospital for his injuries. He received pain relief medication for a pulled muscle in his buttocks. His right thumb was stabilized with a splint. Kelly also had an abrasion on his shin. Subsequently, Kelly was diagnosed with an injury to his right wrist.
" The jury found the [petitioner] guilty of both counts, assault in the second degree and assault of a peace officer, and the court sentenced the [petitioner] to a total effective term of fifteen years in prison." State v. Bosse, 99 Conn.App. 675, 676-77, 915 A.2d 932, cert. denied, 282 Conn. 906, 920 A.2d 310 (2007).
" On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. For several months prior to the incident underlying this appeal, the [petitioner] and the female victim were neighbors in an apartment building. The [petitioner] and the victim were acquaintances; they had never spoken to each other on the telephone, but the [petitioner] had once been to the victim’s apartment, visiting with her and her granddaughter. At approximately 9:30 p.m. on May 8, 2001, the [petitioner] called the victim on the telephone and invited her to his apartment to watch a movie with him. The victim declined the invitation, but the [petitioner], in a stern voice, insisted that she come to his apartment. After this initial conversation ended, the [petitioner] called the victim again, but the victim did not answer her telephone.
" A short time later, the [petitioner] appeared at the victim’s apartment, knocking on the door and windows. The [petitioner] identified himself and asked the victim to let him into her apartment. The victim became frightened. As she approached the door to her apartment, the [petitioner] burst through the door, wrapped his hands around her throat and began to choke her. A physical struggle between the [petitioner] and the victim ensued. While the victim tried to break free and to protect herself, the [petitioner] dragged her out of her apartment and into a nearby hallway. The [petitioner] told the victim to ‘go with it’ and to ‘let go.’ In a hushed voice, the [petitioner] also told the victim that he loved her. At one point during the struggle, the victim pretended to faint, causing the [petitioner] to loosen his grip on her neck. The victim began to flee, but the [petitioner] grabbed her by one of her legs and pulled her back to him. Eventually, the struggle moved outdoors where the victim, experiencing difficulty as a result of the [petitioner’s] assault, began screaming for help. The [petitioner] caught up with her and pinned her against a wall.
" A bystander, Myron St. Pierre, heard the victim’s cries for help and observed the defendant attempting to pull the victim against her will back inside the apartment building. St. Pierre approached the [petitioner] and the victim, instructing them to break up the melee. The [petitioner] told St. Pierre: ‘[S]he just got out of a mental institute. She’s crazy. We can handle it ... it’s all right.’ The victim told St. Pierre that the [petitioner] was lying and was trying to kill her. The victim also asked him to call the police. After the [petitioner] briefly chased the victim and St. Pierre, St. Pierre physically restrained the [petitioner] on the ground and instructed the victim to run to a nearby police station. The victim took refuge in her apartment and reported the incident to the police. St. Pierre restrained the [petitioner] until the police arrived on the scene.
" When David Posadas, an officer with the local police department, arrived at the scene, St. Pierre informed him that the [petitioner] had attacked the victim. Posadas asked the [petitioner] what had occurred, and the [petitioner] replied that he had not attacked the victim. The [petitioner] stated that the victim was suicidal and that he had tried to prevent her from harming herself. Posadas also spoke with the victim, who appeared to be upset and disheveled. The victim related the [petitioner’s] actions to Posadas; her account was corroborated in part by the caller identification function on her telephone, which reflected that the [petitioner] had called the victim earlier that evening.
" The [petitioner] was placed under arrest. A search of his person incident to his arrest yielded, among other items, a pair of handcuffs and a ‘bondage device.’ The [petitioner] consented to a police search of his apartment. Although the [petitioner] was calm and cooperative with the police until and immediately following his arrest, he began mumbling to himself and rocking back and forth during the search of his apartment. During the booking process at the police department, the [petitioner] became combative with the police officers involved; he would not comply with the orders being given to him by the officers and refused to be fingerprinted. Officers ultimately used pepper spray in an effort to subdue the [petitioner].
" The device also was described at trial as both a ‘gag ball’ and a ‘ball gag.’ "
" At approximately 3 a.m. on the morning following his arrest, the [petitioner] indicated that he wanted to discuss the events that culminated in his arrest. After waiving his right to remain silent, the defendant spoke with Sandra Mattucci, an officer with the local police department. The [petitioner] stated that, on the prior evening, he had intended to help the victim by bringing her ‘into a deeper level of consciousness and ... into a true reality.’ He stated that he intended to accomplish this by using the handcuffs and bondage device found on his person and by raping and torturing the victim. The [petitioner] admitted that he entered the victim’s apartment and choked the victim to ‘make her unconscious so that he could bring her back upstairs to his apartment ... [and] bring her into this true reality.’ He also stated that he previously had used the handcuffs and bondage device on himself and others." (Footnote renumbered.) State v. John B., 102 Conn.App. 453, 455-58, 925 A.2d 1235, cert. denied, 284 Conn. 906, 931 A.2d 267 (2007).
II. Count One- Salamon/Luurtsema Claims
The petitioner makes several allegations in count one, paragraph 1, under the rubric of Salamon/Luurtsema . The petitioner claims that: (A) the trial court did not properly instruct the jury as to the charge of attempted kidnapping; (B) the petitioner was convicted for conduct that the state legislature did not intend to criminalize with regards to the attempted kidnapping conviction; (C) the petitioner’s plea negotiations were unreasonably curtailed in light of the change in the interpretation of the kidnapping statute; and (D) the petitioner is being unreasonably and cruelly punished for conduct that is, in light of Salamon, no longer a crime in Connecticut. The petitioner further alleges that these due process violations prejudiced his case while also dramatically limiting his ability to obtain a lesser sentence or receive a conviction for a lesser offense.
" [A] defendant may be convicted of both kidnapping and another substantive crime if, at any time prior to, during or after the commission of that other crime, the victim is moved or confined in a way that has independent criminal significance, that is, the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crime. Whether the movement or confinement of the victim is merely incidental to and necessary for another crime will depend on the particular facts and circumstances of each case ..." State v. Salamon, [ 287 Conn. 509, 547, 949 A.2d 1092 (2008)]. " ... Connecticut courts ultimately assess the importance of a Salamon instruction by scrutinizing how a reasonable jury would perceive the defendant’s restraint of the victim, particularly with respect to when, where, and how the defendant confined or moved the victim." Wilcox v. Commissioner of Correction, 162 Conn.App. 730, 745, 129 A.3d 796 (2016).
In Hinds v. Commissioner of Correction, 321 Conn. 56, 136 A.3d 596 (2016), the Supreme Court recently summarized the " extraordinary circumstances preceding and following [its] decision in Salamon . Under our Penal Code, the hallmark of a kidnapping is an abduction, a term that is defined by incorporating and building upon the definition of restraint ... State v. Salamon, supra, 287 Conn. at 530, 949 A.2d 1092; ... In 1977, this court squarely rejected a claim that, when the abduction and restraint of a victim are merely incidental to some other offense, such as sexual assault, that conduct cannot form the basis of a guilty verdict on a charge of kidnapping. See State v. Chetcuti, 173 Conn. 165, 170-71, 377 A.2d 263 (1977). The court pointed to the fact that our legislature had declined to merge the offense of kidnapping with sexual assault or with any other felony, as well as its clearly manifested intent in the kidnapping statutes not to impose any time requirement for the restraint or any distance requirement for the asportation. Id. On numerous occasions ... this court reiterated that position. See, e.g., State v. Wilcox, 254 Conn. 441, 465-66, 758 A.2d 824 (2000); State v. Amarillo, 198 Conn. 285, 304-06, 503 A.2d 146 (1986); State v. Vass, 191 Conn. 604, 614, 469 A.2d 767 (1983); State v. Johnson, 185 Conn. 163, 177-78, 440 A.2d 858 (1981), aff’d, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983); State v. Briggs, 179 Conn. 328, 338-39, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980); State v. DeWitt, 177 Conn. 637, 640-41, 419 A.2d 861 (1979); State v. Lee, 177 Conn. 335, 342-43, 417 A.2d 354 (1979). The court appeared to leave open the possibility that there could be a factual situation in which the asportation or restraint was so miniscule that a conviction of kidnapping would constitute an absurd and unconscionable result that would render the statute unconstitutionally vague as applied. See State v. Troupe, 237 Conn. 284, 315, 677 A.2d 917 (1996); State v. Tweedy, 219 Conn. 489, 503, 594 A.2d 906 (1991). A kidnapping conviction predicated on the movement of the sexual assault victim from one room in her apartment to another, however, was deemed not to constitute such a result. State v. Tweedy, supra, at 503, 594 A.2d 906.
" In State v. Luurtsema, 262 Conn. 179, 203-04, 811 A.2d 223 (2002) (Luurtsema I), ... this court foreclosed the possibility of an absurd or unconscionable result as a matter of statutory interpretation. In that case, the defendant, Peter Luurtsema, had moved the victim from the couch to the floor, forced the victim’s legs apart, and manually choked her while attempting to perpetrate a sexual assault. Id., at 200, 811 A.2d 223. The defendant was convicted of attempt to commit sexual assault in the first degree, kidnapping in the first degree, and assault in the second degree. This court again rejected the request to interpret our kidnapping statute so as to require that the restraint and abduction to support kidnapping exceed that which is incidental to the commission of another crime. In accordance with the consistent refrain of the decisions that preceded it, the court in Luurtsema I concluded that, in light of the express statutory terms, ‘[t]he defendant’s interpretation of the kidnapping statute is simply not the law in this state.’ (Internal quotation marks omitted.) Id., at 202, 811 A.2d 223.
" Six years later, in Salamon, the court was persuaded to reexamine the broad, literal interpretation to which it had adhered for more than three decades. See State v. Salamon, supra, 287 Conn. at 513-14, 949 A.2d 1092. In concluding that it must overrule its long-standing interpretation, the court went beyond the language of the kidnapping statutes to consider sources that it previously had overlooked. It explained: ‘Upon examination of the common law of kidnapping, the history and circumstances surrounding the promulgation of our current kidnapping statutes and the policy objectives animating those statutes, we now conclude the following: Our legislature, in replacing a single, broadly worded kidnapping provision with a gradated scheme that distinguishes kidnappings from unlawful restraints by the presence of an intent to prevent a victim’s liberation, intended to exclude from the scope of the more serious crime of kidnapping and its accompanying severe penalties those confinements or movements of a victim that are merely incidental to and necessary for the commission of another crime against that victim. Stated otherwise, to commit a kidnapping in conjunction with another crime, a defendant must intend to prevent the victim’s liberation for a longer period of time or to a greater degree than that which is necessary to commit the other crime.’ (Emphasis added.) Id., at 542, 949 A.2d 1092.
" Following that decision, Luurtsema filed a habeas petition seeking to have the holding in Salamon applied retroactively to his case. Luurtsema v. Commissioner of Correction, [ 299 Conn. 740, 743, 12 A.3d 817 (2011)]. In Luurtsema II, this court concluded as a matter of state common law that policy considerations weighed in favor of retroactive application of Salamon to collateral attacks on judgments rendered final before that decision was issued. In response to a host of arguments advanced by the state against retroactivity, the court concluded: ‘We are not unsympathetic to the legitimate concerns ... relating to the general importance of preserving the finality of criminal convictions ... [H]owever, we are convinced that ... in cases such as this, the interests of finality must give way to the demands of liberty and a proper respect for the intent of the legislative branch.’ Id., at 766, 12 A.3d 817." (Footnotes omitted.) Hinds v. Commissioner of Correction, supra, 321 Conn. 65-69.
The petitioner’s criminal jury trial occurred in 2005, three years prior to the release of Salamon in 2008. The jury was not instructed in accordance with the requirements of Salamon This court, therefore, will assess whether the absence of a Salamon instruction was harmless. See, e.g., State v. Hampton, 293 Conn. 435, 463, 988 A.2d 167 (2009) (" [T]he test for determining whether a constitutional [impropriety] is harmless ... is whether it appears beyond a reasonable doubt that the [impropriety] complained of did not contribute to the verdict obtained" ); Eric v. Commissioner of Correction, 153 Conn.App. 837, 843-45 (2014), cert. denied, 315 Conn. 915 (2015). " The test for determining whether a trial court’s constitutionally defective jury charge was harmless ... is not whether a jury likely would return a guilty verdict if properly instructed; rather, the test is whether there is a reasonable possibility that a properly instructed jury would reach a different result." State v. Flores, 301 Conn. 77, 87, 17 A.3d 1025 (2011).
The court will assume, for discussion purposes only, that the petitioner was entitled to an instruction that comported with Salamon. If the petitioner were not entitled to such an instruction, then there could not be any harm or prejudice. The underlying facts do not, in this court’s analysis, warrant a Salamon instruction. Nevertheless, a criminal court might give such an instruction in an abundance of caution. An analysis that assesses the harmlessness to the petitioner when an instruction is not given is akin to only addressing the prejudice prong in an ineffective assistance of counsel claim.
The petitioner was prosecuted for attempted kidnapping. The trial court’s charge to the jury specifically indicated that the petitioner was alleged to have taken " ... a substantial step forward in abducting another person ... by substantially and unlawfully restraining [the complainant’s] movement and restrained [her] by the use of physical force with the intent to inflict physical injury upon her ..." Transcript (October 4, 2005), p. 542. The facts as reasonably found by the jury included the petitioner bursting through the victim’s apartment door, wrapping his hands around her throat, and choking her. A physical struggle occurred and the victim tried to break free, but the petitioner dragged her outside of the apartment into a nearby hallway. Subsequently, after the victim started fleeing, the petitioner grabbed her by a leg and pulled her back toward him. The petitioner and the victim continued to struggle and ended up outdoors, where the victim screamed for help and the petitioner pinned her against a wall. In his statement to police the day after he committed the offenses, the petitioner acknowledged that he intended to torture and rape the victim.
The petitioner’s post-trial brief analyzes the Salamon/Luurtsema claim. However, a critical flaw in the analysis emanates from the compression of the timeline and absence of relevant facts. The petitioner’s overly succinct summary of the facts pertaining to the sequence of events omits much of what transpired between the petitioner and the victim. The petitioner’s analysis of the Salamon/Luurtsema claim omits facts reasonably found by the jury; thus, it is not surprising that the petitioner’s brief concludes, as a result of the myopic view of the proven facts surrounding the protracted series of incidents, that the petitioner’s restriction of the victim was merely incidental to the attempted sexual assault.
In Luurtsema, the facts surrounding the kidnapping involved the defendant’s movement of the victim from the couch to the floor in front of the couch. Any sexual assault could have occurred on the couch or on the floor, or both, but it would be up to a properly instructed jury to determine whether the movement or restriction of movement had any distinct criminal significance. The present matter involves facts readily distinguishable from ones where a Salamon instruction clearly is warranted. The trial court was not required to give a Salamon instruction, but even if it had been required to do so, this court concludes that the absence of a Salamon instruction was completely harmless because there is no reasonable possibility that a jury instructed pursuant to Salamon would have reached a different result than it did.
The petitioner’s brief does not analyze and discuss several of the claims made in count one (petitioner was convicted for conduct that the state legislature did not intend to criminalize with regards to the attempted kidnapping conviction; the petitioner’s plea negotiations were unreasonably curtailed in light of the change in the interpretation of the kidnapping statute; and the petitioner is being unreasonably and cruelly punished for conduct that is, in light of Salamon, no longer a crime in Connecticut). There was no evidence presented to support these allegations, therefore, the court finds them to be without merit and/or abandoned. See, e.g., Davey B. v. Commissioner of Correction, 114 Conn.App. 871, 878, 971 A.2d 735 (2009) (affirming habeas court’s denial of ineffective assistance claim where no testimony presented by counsel and no other evidence aside from petitioner’s self-serving testimony and the existing record from criminal case); Gipson v. Commissioner of Correction, 67 Conn.App. 428, 434, 787 A.2d 560 (2001) (affirming habeas court’s denial of ineffective assistance claim for failing to meet burden of proof by not presenting testimony by counsel and/or expert witness).
Furthermore, claims raised and not briefed may also be deemed abandoned. See, e.g., Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) (" [R]eviewing courts are not required to review issues that have been improperly presented to th[e] court through an inadequate brief ... Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly ... Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without discussion or citation of authorities, it is deemed to be abandoned ... These same principles apply to claims raised in the trial court" ); Raynor v. Commissioner of Correction, 117 Conn.App. 788, 796, 981 A.2d 517 (2009), cert. denied, 294 Conn. 926, 986 A.2d 1053 (2010) (" The petitioner’s failure to brief his first claim to the habeas court, namely, improper preparation and investigation by trial counsel, resulted in an abandonment of that claim" ).
The court concludes that these unsupported and unbriefed claims in count one have no merit, are unsupported and/or abandoned.
III Count Two- Ineffective Assistance of Counsel
The petitioner alleges that Attorney McKay rendered ineffective assistance of counsel in the following ways: (A) failed to meaningfully explain to him the potential of continued prosecution regardless of the missing witness, the complainant; (B) failed to meaningfully explain to him the maximum and minimum penalties of all the charges against him; (C) failed to effectively engage in pretrial plea negotiations; (D) failed to move to stay the imposition of sentence in Docket CR01-196687; (E) failed to request that he receive all available jail credit at the time of sentencing in both dockets; (F) improperly conceded his guilt in closing argument without the petitioner’s consent; (G) failed to present any mitigating evidence at sentencing, including, but not limited to, the evaluations by Drs. Selig and Meisler and the presentence investigation report; and (H) failed to consult with him about the consequences of changing his plea, insofar as trial counsel conceded the petitioner’s guilt during the closing arguments to the jury. The petitioner’s post-trial brief only addresses the allegations in (A), (B), (F), (G), and (H). The court, therefore, deems the allegations in (C), (D), and (E) to be abandoned. Connecticut Light & Power Co. v. Dept. of Public Utility Control, supra, 266 Conn. 120; Raynor v. Commissioner of Correction, supra, 117 Conn.App. 796.
A. Standard for Claims of Ineffective Assistance by Trial Counsel
" A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, [ 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)]. This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution ... It is axiomatic that the right to counsel is the right to the effective assistance of counsel ... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong ... the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law ... To satisfy the prejudice prong, [the petitioner] must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different ... The claim will succeed only if both prongs are satisfied ... Gonzalez v. Commissioner of Correction, 308 Conn. 463, 470, 68 A.3d 624, cert. denied sub nom. Dzurenda v. Gonzalez, 134 S.Ct. 639, 187 L.Ed.2d 445 (2013). Consequently, [i]t is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier. ... Valeriano v. Bronson, 209 Conn. 75, 86, 546 A.2d 1380 (1988); see also Strickland v. Washington, supra, 697 (a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant) ... Small v. Commissioner of Correction, 286 Conn. 707, 713, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008)." (Emphasis omitted; internal quotation marks omitted.) Sanchez v. Commissioner of Correction, 314 Conn. 585, 605-06, 103 A.3d 954 (2014).
" In order to prevail on a claim of ineffectiveness of counsel, the petitioner must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome ... [T]he question is whether there is a reasonable probability that, absent the [alleged] errors, the [fact finder] would have had a reasonable doubt respecting guilt ...
" In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or the jury ... Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support ... [T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged ... The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Citations omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 688-89, 51 A.3d 948 (2012).
B. Alleged Failure to Explain Potential of Continued Prosecution Without Complainant
The petitioner alleges that Attorney McKay failed to meaningfully explain to him the potential of continued prosecution regardless of the missing complainant/witness. The petitioner’s post-trial brief indicates that in the weeks leading up to the criminal trial and until the second day of trial, the complainant could not be located by both the Office of the Victim’s Advocate and an investigator for the Office of the State’s Attorney. The petitioner posits that had Attorney McKay properly advised him about the state’s ability to continue the prosecution in absence of the complainant, then the petitioner would have been able to make a more fully informed decision about proceeding to trial.
On the first day of the criminal trial in the attempted sexual assault case, Inspector Duarte from the Office of the State’s Attorney testified when the court took up the motion in limine regarding several statements made to the police, including the complainant’s statement to the police. The complainant was either in Connecticut or Georgia prior to the criminal trial, but the investigator was unable to locate her or speak to her. Attorney McKay on cross examination was able to elicit that the Victim’s Advocate had contact with the complainant and that she was willing to return to Connecticut and testify. The trial court admitted the complainant’s statement. The complainant was located and did, in fact, return to Connecticut to testify in the petitioner’s criminal trial.
The attempted sexual assault trial was preceded by the petitioner being found not competent, although his competency was later restored. That trial was also preceded by the trial on the assault of the judicial marshal. The state and the defense did conduct plea negotiations that would have resolved both criminal matters. However, the petitioner proceeded to trial on the assault of the judicial marshal case, was convicted by a jury, and then sought to resolve the attempted sexual assault case via a plea. The state was no longer willing to resolve the second matter by way of a plea offer and took the case to trial.
The petitioner asserted the affirmative defense of mental disease or defect and presented the testimonies of Drs. Selig and Meisler. That defense and the trial preparation stand juxtaposed to the petitioner’s present day assertion that he would have pleaded guilty had he known the complainant would not be available for trial. In light of the fact that the victim’s potential unavailability was not established until the very onset of trial, the petitioner’s testimony that he would have resolved the matter short of trial is not credible. According to Attorney McKay, it was difficult to convince the petitioner to not go to trial and he advised the petitioner that he would likely face conviction. The petitioner, however, testified that Attorney McKay thought that he had a good chance of winning at trial. Central to the petitioner’s decision to go forward with the trial, according to his habeas testimony, was that the complainant was not going to testify. The petitioner thought that he would prevail on his affirmative defense and be found not guilty by reason of mental disease or defect.
Given all the foregoing, the court does not find that Attorney McKay’s performance was deficient. The complainant’s presence at the trial was possible, even likely, and the petitioner may have hoped that she would not appear and testify. Any such hope, of course, was dashed by the complainant testifying. Whether or not she testified, the defense efforts centered on the affirmative defense, which the petitioner viewed as having a greater chance of success if the complainant did not testify. These factors dispel the petitioner’s present day contention that he would have resolved the attempted sexual assault case short of trial. The court concludes, therefore, that the petitioner has failed to show deficient performance by counsel.
C. Failure to Meaningfully Explain the Maximum and Minimum Penalties
The petitioner’s next claim is that Attorney McKay failed to meaningfully explain to him the maximum and minimum penalties of all charges. Attorney McKay testified that he advised the petitioner of his sentence exposure in each of the two criminal cases, though at the time of the habeas trial he did not recall the specific number of years he indicated more than a decade ago. The petitioner testified that he knew the maximum exposure for the assault on the judicial marshal case, but not for the attempted sexual assault case. The petitioner also testified that he and Attorney McKay discussed the plea offers on both cases.
The court does not find the petitioner’s selective testimony to be credible. The claim that Attorney McKay was deficient for failure to meaningfully explain the maximum and minimum penalties for one matter while explaining them for the other is not credible and more important, is not substantiated by any credible evidence and is therefore denied.
D. Closing Argument That Improperly Conceded the Petitioner’s Guilt
Next, the petitioner alleges that he did not consent to Attorney McKay’s closing argument in which he conceded the petitioner’s guilt. The petitioner’s affirmative defense, pursuant to General Statutes § 53a-13, that he should be found not guilty by reason of mental disease or defect inherently entails an acknowledgement that he committed the offenses. The goal of such a defense is to have a defendant determined to be not criminally liable for unlawful conduct. See, e.g., Connelly v. Commissioner of Correction, 258 Conn. 374, 387, 780 A.2d 890 (2001). The Supreme Court has noted that " ... by maintaining an affirmative defense pursuant to § 53a-13, the petitioner admitted his commission of the crime ... Such an admission necessarily implies that the petitioner also concedes that each of the individual elements comprising the offense is satisfied, one of which is specific intent." (Internal citation and quotation marks omitted.) Sastrom v. Mullaney, 286 Conn. 655, 663-41, 945 A.2d 442 (2008).
Due to the affirmative defense asserted by the petitioner, this court fails to see how Attorney McKay’s argument in closing, in which he acknowledged the petitioner’s actions, is indicative of deficient performance. The court concludes that Attorney McKay’s remarks reflect a reasonable trial strategy. The petitioner, therefore, has not shown that trial was ineffective because he failed to get the petitioner’s consent prior to conceding the petitioner committed any of the offenses he was contesting with his affirmative defense.
E. Failure to Present Mitigating Evidence at Sentencing
The petitioner next faults Attorney McKay for failing to present any mitigating evidence at the sentencing, including, but not limited to, the evaluations by Drs. Selig and Meisler and the presentence investigation report. Aside from the two reports from Drs. Selig and Meisler entered into evidence during the habeas trial, there is no other evidence in support of this claim. The respondent’s post-trial brief aptly notes that the testimonies of both Drs. Selig and Meisler were presented during the criminal trial itself in support of the affirmative defense. Thus, the trial court was fully aware of the substance of their evaluations, assessments, and conclusions. The trial court similarly knew the contents and conclusions contained in the presentence investigation report.
As with any claim of ineffective assistance, the petitioner must prove that Attorney McKay was deficient and that such deficient performance inured to the petitioner’s prejudice. The court cannot find Attorney McKay deficient for failing to present the two reports when the trial court already heard their testimonies during the criminal trial. Attorney McKay specifically informed the court that he had reviewed the presentence investigation report with the petitioner. Here, there is no evidence that shows Attorney McKay was deficient, nor that the outcome of the sentencing would have been any different. See, e.g., Sotomayor v. Commissioner of Correction, 135 Conn.App. 15, 24-27, 41 A.3d 333, cert. denied, 305 Conn. 903, 43 A.3d 661 (2012) (petitioner failed to prove deficient performance at sentencing for failure to present mitigating evidence; even assuming deficient performance, no showing the sentence imposed would have been any different). Consequently, this claim must also be denied.
F. Failure to Consult About Consequences of Plea/Concession of Guilt
The final claim of deficient performance by Attorney McKay is that he failed to consult with the petitioner about the consequences of changing his plea, insofar as trial counsel conceded his guilt during the closing arguments to the jury. The petitioner’s post-trial brief argues that Attorney McKay failed " ... to meaningfully explain to the petitioner that utilizing the affirmative defense of mental disease or defect would require the concession of guilt in all areas, and in his failure to obtain the petitioner’s consent to do so." Brief, p. 14. There is no analysis of this claim and how the petitioner’s plea, presumably a " not guilty" plea made prior to trial, was impacted by any closing arguments made at the end of the criminal trial, and it is unclear how these two assertions are linked. Furthermore, the petitioner could not recall at the time of the habeas trial if Attorney McKay advised him that he would in essence be conceding guilt by asserting an affirmative defense of mental disease or defect.
The court relies on its previous discussion and conclusions that Attorney McKay was not deficient in his performance when he made concessions during the closing arguments to the jury. The court concludes this final basis for ineffective assistance also is unproven and must be denied.
CONCLUSION
Based upon the foregoing, the court denies the petition for a writ of habeas corpus.
Judgment shall enter for the respondent.
It is so ordered.