Opinion
No. CV05-4000380
December 31, 2007
MEMORANDUM OF DECISION
The petitioner alleges in his Amended Complaint filed July 7, 2005, that his habeas corpus attorney, Michael D'Onofrio, was ineffective in his representation of his appeal from a habeas corpus trial: attorney D'Onofrio failed to file an appellate brief for the petitioner and the appeal was dismissed by the appellate court. As relief, the petitioner asks the court to grant his petition for a writ of habeas corpus and restore his right to appeal the denial of his petition for certification to appeal the denial of his previous petition for a writ of habeas corpus. The petitioner is in the custody of the Commissioner of Correction as a result of a conviction for murder in violation of General Statutes § 53a-54a.
The matter came before the court on October 29, 2007 for a trial on the merits. Witnesses included the petitioner's habeas corpus attorney, Michael D'Onofrio and attorney Martin Zeldis. As additional evidence, the respondent offered three exhibits. Based on the court's review of the testimony and documentary evidence, judgment enters granting the petition for a writ of habeas corpus.
FINDINGS OF FACTS
In March 2003, the petitioner filed a petition for a writ of habeas corpus, (CV03-0003962) in the Superior Court Judicial District of Tolland at Rockville. The petition was denied after a hearing by the court, White, J. The petition for certification was denied and the application for appointment counsel was granted by the habeas corpus court.
Attorney D'Onofrio who represented the petitioner on the habeas corpus action was appointed as a special public defender to represent the petitioner on the appeal. Attorney D'Onofrio failed to file an appellate brief for the petitioner and the appeal was dismissed.
Attorney D'Onofrio was contacted by the chief of legal services for the office of the Chief Public Defender, attorney Martin Zeldis, who informed attorney D'Onofrio that the appeal was dismissed for failure to timely file an appellate brief on behalf of the petitioner. Attorney D'Onofrio assured attorney Zeldis that he would file a motion with the appellate court to open the appeal to allow attorney D'Onofrio to file a late brief. However, attorney D'Onofrio failed to file the motion to open. Thereafter, attorney Zeldis filed a motion with the appellate court to restore the petitioner's appellate rights. The motion was denied by the court.
Attorney D'Onofrio testified and confirmed that he had failed to file the appellate brief and that he had failed to file the motion to open the dismissal of the appeal. Several extensions of time were requested and granted by the appellate court to file the brief. Attorney D'Onofrio testified that he failed to file the appellate brief because of personal and health issues. A complaint was filed with the Statewide Grievance Committee where he was reprimanded and required for a period of time to work as an attorney under the supervision of another attorney.
Attorney Zeldis testified that he attempted to contact attorney D'Onofrio when he was informed of the dismissal of the appeal.
Additional facts will be discussed, as necessary.
DISCUSSION
"In Strickland v. Washington, [ 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)], the United States Supreme Court adopted a two-part standard for evaluating claims of ineffective assistance of counsel during criminal proceedings: the defendant must show: (1) that counsel's representation fell below an objective standard of reasonableness . . . and (2) that defense counsel's deficient performance prejudiced the defense . . .
"The first part requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the [s]ixth [a]mendment . . . In determining whether such a showing has been made, judicial scrutiny of counsel's performance must be highly deferential . . . The reviewing court must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct . . .
"The second part requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable . . . The defendant 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 . . ." Valentin v. Commissioner of Correction, 94 Conn.App. 751, 754-55 (2006).
"It is well settled that in order to prevail on a claim of ineffective assistance of counsel, the petitioner must prove both prongs of the Strickland test. A reviewing court [therefore] can find against a petitioner on either ground, whichever is easier." (Internal quotation marks omitted.) Lacks v. Commissioner of Correction, 87 Conn.App. 225, 231, cert. denied, 273 Conn. 922 (2005).
Here the petitioner has proved the first prong. His counsel failed to file the appellate brief for personal and health reasons. Failure to file an appellate brief can result and, in this case, did result in the dismissal of the appeal by the appellate court. Practice Book § 66-8. "[A] defendant's statutory right to appeal is fundamental and must be jealously protected." (Internal citations and quotations omitted.) Barlow v. Lopes, 201 Conn. 103, 109, 513 A.2d 132 (1986). There is no indication in this case that the petitioner waived his right to appeal. Consequently, it is this Court's conclusion that the petitioner's right to appeal was abridged by counsel's failure to file an appellate brief.
The second prong requires a showing of prejudice because of counsel's failure to file the appellate brief. But for attorney D'Onofrio's failure to file the appellate brief, the appeal would have been considered on the merits of the appeal. "A habeas court must fashion a remedy appropriate to the constitutional right it seeks to vindicate. Proof of unconstitutional impairment of the right to appeal empowers a court to fashion an order . . . or otherwise fashioning . . . appropriate relief . . . to which the petitioner may be entitled." (Internal citation omitted.) James L. v. Commissioner of Correction, 245 Conn. 132, 148, 712 A.2d 947 (1998). The petitioner has proved the second prong.
CONCLUSION
Consequently, the petition seeking habeas corpus relief is granted and the petitioner's right to appeal the denial of his petition for certification to appeal the denial of his previous petition for a writ of habeas corpus is restored. Petitioner's attorney shall file a Petition for Certification to the appellate court within thirty days from the date of this decision.
[*] Editor's Note: This memorandum of decision replaces an earlier opinion bearing the same caption and file stamp dates. A cover letter from the clerk's office states that the only change is the addition of the last sentence stating that the requested appeal shall be filed within thirty days.