Opinion
TSRCV114004218S
07-25-2018
Francis ANDERSON (#139042) v. WARDEN, State Prison
UNPUBLISHED OPINION
OPINION
Farley, J.
The petitioner, Francis Anderson, seeks habeas corpus relief based on alleged ineffective assistance of trial counsel resulting in conviction pursuant to his guilty plea on two counts of assault on public safety personnel in violation of General Statutes § 53a-167c. He claims his conviction resulted from his counsel’s failure to adequately investigate the case, explain the strengths and weaknesses of the case to him, meaningfully explain the plea offers made to him and explain the likely range of sentences he could face. The petitioner’s case, as presented at trial and in his post-trial brief, focuses specifically upon his attorney’s failure to adequately explore and explain a potential defense of lack of capacity, as an alternative to his guilty pleas, and to otherwise provide an effective defense based on the petitioner’s mental health issues. The court concludes that Mr. Anderson’s defense counsel provided competent representation, did sufficiently explore and explain a potential lack of capacity defense, and provided Mr. Anderson with reasonable strategic advice leading to Mr. Anderson’s knowing and voluntary decision to accept a plea offer. The court further concludes that Mr. Anderson received competent representation at his sentencing hearing.
FACTS
Mr. Anderson has a long history of violent behavior and mental illness. In the underlying case, Mr. Anderson was charged with assaulting two correctional officers when they entered his cell immediately after having, in Mr. Anderson’s opinion, mistreated another inmate with mental illness. This was not the first such occasion. Mr. Anderson has a long history of assaults against correctional officers and others. His psychological issues and behavioral problems date back to his childhood and he has been in and out of correctional facilities since his youth. The incident underlying the conviction that is the subject of this habeas petition occurred in September 2009 at Northern Correctional Institution. Mr. Anderson was charged with two counts of assault on public safety personnel in violation of General Statutes § 53a-167c, class C felonies, as well as an infraction for failure to comply with fingerprinting in violation of General Statutes § 29-17. The felony counts exposed him to up to twenty years of incarceration and any sentence was required by statute to run consecutively to the sentence he was serving at the time. Subsequently, accounting for his prior history, the state filed Part B informations charging Mr. Anderson as a persistent felony offender in violation of General Statutes § 53a-40(g) and as a persistent serious felony offender in violation of General Statutes § 53a-40(c). These additional charges increased Mr. Anderson’s exposure to up to forty years of incarceration. On March 3, 2011, after a jury had been selected, Mr. Anderson pleaded guilty to the two assault counts under an open plea, the state having agreed to drop the Part B counts in exchange for the guilty plea. Thus, at sentencing Mr. Anderson faced a total exposure of twenty years. He was sentenced to five years to serve on each of the two counts, to run concurrently with each other and consecutive to the sentence he was then serving.
At the time, this offense appeared at General Statutes § 53a-40(f).
Mr. Anderson had completed serving this sentence at the time of trial, but testified that he wished to pursue his petition, notwithstanding that it would potentially lead to a reinstatement of all the charges, exposing him to an additional and more substantial period of incarceration on these charges.
Following Mr. Anderson’s arraignment on the original charges, Attorney Douglas Ovian was assigned to represent him. At the time, Attorney Ovian had over twenty years of experience with the Division of Public Defender Services and had served as a public defender in the Tolland Judicial District for over three years. Mr. Anderson made numerous appearances in court prior to trial. Attorney Ovian met with Mr. Anderson on these occasions and had the opportunity to explore at length with him the underlying events and his criminal and psychological history. Attorney Ovian directed his staff to compile a record of Mr. Anderson’s mental health history and treatment and to prepare a summary of that history, as well as Mr. Anderson’s criminal history. Extensive records were obtained, dating back to a psychological evaluation performed by Dr. Donald Grayson in 2000, which in turn reviewed Mr. Anderson’s prior records. It is not clear, however, that Attorney Ovian had the entirety of Mr. Anderson’s mental health records, in particular a 1982 report from Riverview School prepared when Mr. Anderson was twelve years old, records from a prior commitment to Whiting Forensic Institute in 2005 and some community treatment in 2007. The summary prepared for Attorney Ovian, however, does reference the 2005 admission to Whiting, as well as Mr. Anderson’s childhood history.
Over the course of the pretrial proceedings in the case, Attorney Ovian regularly discussed Mr. Anderson’s mental health issues with him and how those issues might relate to a defense strategy in the case. These discussions included a "colloquial" discussion of a potential lack of capacity defense. By "colloquial," Attorney Ovian means a discussion in layman’s terms, as distinguished from a technical, legal discussion. The petitioner makes much of the fact that Attorney Ovian does not have written notes concerning the discussion of a lack of capacity defense with him. Attorney Ovian, however, freely acknowledged areas of his recollection that were unclear and deferred to Mr. Anderson’s recollection on occasion. He was very clear in recalling that he did address the subject of a potential lack of capacity defense with Mr. Anderson and the court credits his testimony on that point despite Mr. Anderson’s contradictory testimony. It is Mr. Anderson’s testimony the court finds is not credible. According to Mr. Anderson, Attorney Ovian never discussed the following subjects with him: the facts of the case; the strengths and weaknesses of the case; the minimum and maximum penalties he faced; a plea offer from the state of eighteen months to serve; the option of a court trial rather than a jury trial; and a potential lack of capacity defense. Mr. Anderson does acknowledge that he discussed his mental health issues with Attorney Ovian, but he maintains that Attorney Ovian ignored those issues. The court does not find Mr. Anderson’s testimony concerning how Attorney Ovian conducted the defense and the nature of his dealings with Attorney Ovian to be credible.
Following his initial meetings with Mr. Anderson and the review of his mental health history, Attorney Ovian was of the view that a lack of capacity defense was not a viable option for Mr. Anderson. The history reflected diagnoses of post-traumatic stress disorder, personality disorder, borderline intellectual functioning and substance abuse. Despite the extensive mental health history, however, it was Attorney Ovian’s view that the facts did not support a claim that Mr. Anderson lacked the capacity either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law. In addition to his assessment that a lack of capacity defense was not viable, Attorney Ovian also considered the pursuit of that defense as strategically unsound because it would potentially expose Mr. Anderson to a period of confinement significantly longer than what could be negotiated in a plea agreement with the state. Attorney Ovian raised the subject of Mr. Anderson’s extensive mental health history with the state in plea negotiations. At one point, Attorney Ovian obtained a plea offer from the state that would have resulted in an agreed-upon sentence of eighteen months to serve. Mr. Anderson, however, rejected that offer.
Attorney Ovian discussed the merits of a lack of capacity defense, in addition to the strategic disadvantages of pursuing that defense, with Mr. Anderson. He also checked his own opinion of the merits of such a defense by obtaining an expert opinion on the issue. At the time of jury selection, Attorney Ovian referred Mr. Anderson to Dr. Kenneth Selig, a psychiatrist and an attorney, for evaluation. Attorney Ovian testified that, among other things, he discussed the viability of a lack of capacity defense with Dr. Selig and, based on that discussion, reaffirmed his view that it was not a viable defense for Mr. Anderson. Attorney Ovian relayed that opinion to Mr. Anderson. Mr. Anderson denies ever meeting with Dr. Selig, but the transcripts of the proceedings in the underlying case are consistent with the facts as described by Attorney Ovian and include references to the lack of capacity issue.
Mr. Anderson’s chief concern throughout Attorney Ovian’s representation was the inadequate mental health care he received as an inmate. This became a focus of the defense strategy in the case, particularly after a video of the underlying events undermined Mr. Anderson’s claim of self-defense. As the trial approached, Attorney Ovian pursued a strategy he hoped would limit the potential period during which Mr. Anderson would be confined and at the same time raise the possibility that the nature of his confinement would be substantially the same as if he had successfully pursued a lack of capacity defense. To this end, Attorney Ovian’s referral to Dr. Selig was aimed at determining whether there were any undiagnosed mental health conditions applicable to Mr. Anderson that should be weighed in his sentencing. That effort was unavailing. Attorney Ovian persisted, however, and negotiated an open plea agreement on the assault charges, subject to the state’s further agreement that Mr. Anderson would be referred for a psychiatric examination pursuant to General Statutes § 17a-566. That process opened up the prospect that Mr. Anderson could plead guilty, cap his exposure to incarceration and still be held in the custody of the Department of Mental Health and Addiction Services at the Whiting Forensic Institute. Despite Mr. Anderson’s claim to the contrary, the court finds that Attorney Ovian explained this strategy and this process to Mr. Anderson and informed him that the results of the § 17a-566 examination were uncertain.
The court finds, based on Attorney Ovian’s testimony concerning his oral communications with Dr. Selig and the written request to Dr. Selig seeking a "psychiatric assessment," that this referral was not limited to Dr. Selig’s recommendations regarding appropriate community based treatment.
On March 3, 2011, Mr. Anderson pleaded guilty under the Alford doctrine pursuant to the plea agreement negotiated by Attorney Ovian. He was thoroughly canvassed by the court and then referred for an initial examination pursuant to § 17a-566. In advance of the examination, Mr. Anderson took issue with one of the examiners assigned to the matter, claiming that she had a bias against him. Attorney Ovian looked into that claim, which was counter to his own experience with the examiner, by speaking with her and becoming assured it would not be an issue. The examiners concluded, however, that despite Mr. Anderson’s extensive history of mental illness and behavioral difficulties, he could be treated appropriately by the Department of Correction and no referral to Whiting Forensic Division was recommended. This conclusion was consistent with the opinion expressed orally to Attorney Ovian by Dr. Selig. Mr. Anderson took issue with the results of the examination but, because they were consistent with Dr. Selig’s conclusions, Attorney Ovian did not challenge them. Rather than antagonize the state with a request for a continuance and the retention of yet another expert, which Attorney Ovian believed might negatively impact the state’s position at sentencing, Attorney Ovian proceeded with the presentence investigation process and sentencing, where the court would have access to the § 17a-566 report and additional background information. The transcript of the sentencing hearing reflects the fact that the court had been provided with the available mental health information, including the § 17a-566 report, that detailed Mr. Anderson’s childhood abuse, troubled past and extensive psychiatric history. Attorney Ovian leaned on those materials in presenting his argument to the court and even invited the court to order further examination of Mr. Anderson, despite the recommendations in the § 17a-566 report. The court’s remarks reflect that these issues were considered by the court in deciding upon a sentence.
After disposition of the 2009 case, Mr. Anderson was again charged with assaulting a corrections officer in July 2012. Attorney Cynthia Love represented Mr. Anderson on that charge, which was prosecuted in Norwich. Attorney Love referred Mr. Anderson for evaluation by Dr. Andrew Meisler, a clinical and forensic psychologist. Dr. Meisler authored a report dated February 13, 2013 offering his opinions on Mr. Anderson’s mental condition and the factors that contributed to the 2012 incident. In addition to Mr. Anderson’s prior diagnoses, Dr. Meisler diagnosed Mr. Anderson with "Complex PTSD" which, as he explained at trial in this case, is a diagnosis that has been considered for recognition but is not currently recognized by the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). It distinguishes a subset of individuals with PTSD who, based on the nature of their underlying trauma, suffer "much greater disruptions in relationship to others, self-regulation ..." In the case of Mr. Anderson, Dr. Meisler’s opinion is that certain triggers in his environment cause Mr. Anderson to lose the ability to control his behavior. Dr. Meisler perceives a pattern of events that lead Mr. Anderson into a violent incident, including a change in his surroundings combined with a decrease or elimination of medication therapy and a circumstance in which Mr. Anderson perceives a threat that triggers an impulsive, violent reaction.
With Dr. Meisler’s support, Mr. Anderson went to trial on the 2012 charges and was acquitted on a lack of capacity defense in July 2013. Dr. Meisler was subsequently disclosed as an expert in this case. Pointing out that the 2009 incident followed a transfer of Mr. Anderson to Northern Correctional Institution, what Dr. Meisler views as a "negative assessment by psychiatric staff at Northern" and a discontinuance of medications, Dr. Meisler believes Mr. Anderson was destabilized at the time of the 2009 incident as well. In response to what Mr. Anderson perceived to be unfair treatment of another inmate by corrections officers, Dr. Meisler opines that when Mr. Anderson assaulted the correction officers in 2009 he was "suffering from acute mental illness with marked impairments in emotional regulation and impulse control that prevented him from controlling his behavior in accordance with the law."
PETITIONER’S CLAIMS
In his amended petition, Mr. Anderson claims that Attorney Ovian rendered ineffective assistance of counsel by failing to undertake a proper pretrial investigation of: the facts and circumstances surrounding his arrest; the witnesses in the case; and the relative weaknesses and strengths of the state’s case, Mr. Anderson’s defenses and mitigating factors. He also alleges that Attorney Ovian failed to adequately explain to him the strengths and weaknesses of his defenses and mitigating factors, the plea offers that were made and the range of sentences that could be imposed. Mr. Anderson’s presentation at trial and his post-trial brief were more narrowly focused. He claims and argues that Attorney Ovian’s representation was deficient in that Attorney Ovian:
1. conducted the majority of the defense without consulting with an expert regarding a potential lack of capacity defense, waiting until the eve of trial to retain Dr. Selig;
2. failed to properly supervise his staff charged with the responsibility to compile the records of Mr. Anderson’s mental health history;
3. failed to obtain all the mental health records and provide them to Dr. Selig;
4. failed to keep Mr. Anderson informed and failed to explain to him all potential defenses and the potential mitigating impacts arising out of his mental health condition;
5. limited the scope of Dr. Selig’s inquiry to what treatment would be appropriate for Mr. Anderson were he to be released to the community;
6. failed to retain an expert and challenge the recommendations in the § 17a-566 report;
7. failed to make proper use of the § 17a-566 report and other mental health records at the sentencing hearing; and
8. failed to maintain thorough notes on all the conversations he had while conducting Mr. Anderson’s defense.
The petitioner has cited no authority for the proposition that it is ineffective assistance of counsel when a defense attorney fails to make a written record of all communications. Attorney Ovian did take notes during his representation of Mr. Anderson and the court agrees it is a good idea to keep good records. The court does not agree, however, that the failure to do so is outside the scope of reasonable representation.
DISCUSSION
I. Applicable Legal Standard
"The sixth and fourteenth amendments to the United States constitution guarantee criminal defendants the right to have counsel for their defense in state prosecutions ... Implicit in this guarantee is the right to have effective assistance of counsel." (Emphasis in original; citations omitted.) Skakel v. Commissioner of Correction, 325 Conn. 426, 441, 159 A.3d 109 (2016). "To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." (Citations omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008). The petitioner has the burden to establish that "(1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance." (Emphasis in original.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008), citing Strickland v. Washington, supra, 466 U.S. 694.
Article first, § 8 of the Connecticut constitution affords the same protection as that provided by the United States constitution. Skakel v. Commissioner of Correction, supra, 431, n.8.
"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." Taylor v. Commissioner of Correction, 324 Conn. 631, 637-38, 153 A.3d 1264 (2017). "It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action. Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel’s acts or omissions were so serious that counsel was not functioning as the ‘counsel’ guaranteed by the sixth amendment, and as a result, he was deprived of a fair trial." Harris v. Commissioner of Correction, 107 Conn.App. 833, 845-46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008). When assessing trial counsel’s performance, the habeas court is required to "indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance ..." Strickland v. Washington, supra, 466 U.S. 689.
"Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." (Citation omitted; internal quotation marks omitted.) Strickland v. Washington, supra, 466 U.S. 689. This is so because "[t]here are countless ways to provide effective assistance in any given case"; Id. ; and "[e]ven the best criminal defense attorneys would not defend a particular client in the same way." Id.
Under the second prong of the test, the prejudice prong, the petitioner must show that "counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012). 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." (Internal quotation marks and citations omitted.) Breton v. Commissioner of Correction, 325 Conn. 640, 669, 159 A.3d 1112 (2017).
"Although a petitioner can succeed only if he satisfies both prongs, a reviewing court can find against a petitioner on either ground." (Citations omitted.) Breton v. Commissioner of Correction . See Strickland v. Washington, supra, at 697, 104 S.Ct. 2052 (court need not determine whether counsel’s performance was deficient before examining prejudice suffered by defendant). Ultimately, "[t]he 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." Strickland v. Washington, supra, 466 U.S. 686.
"Where, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases." (Internal quotation marks and citation omitted) Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Carraway v. Commissioner of Corrections, 144 Conn.App. 461, 471, 72 A.3d 426 (2013), appeal dismissed 317 Conn. 594, 119 A.3d 1153 (2015). In order to prevail under the prejudice prong of the Strickland test, the petitioner must prove that, "but for counsel’s allegedly deficient performance, the petitioner would have insisted upon a trial." Carraway v. Commissioner of Corrections, supra, 476, citing Hill v. Lockhart, supra .
II. Reasonableness of Counsel’s Representation
The outcome of Mr. Anderson’s trial arising out of the 2012 charge of assaulting a corrections officer unavoidably enhances the effect of hindsight on the defense strategy pursued by Attorney Ovian in connection with the 2009 charges. It is essential, therefore, to emphasize that the court has a responsibility in this case to reconstruct the circumstances as they were presented to Attorney Ovian and to evaluate the representation he provided from his perspective at the time, not through the prism of hindsight. While Attorney Ovian did not consider a lack of capacity defense viable on its merits, he also perceived it as potentially counterproductive. With charges pending that exposed Mr. Anderson to forty years of incarceration, a successful lack of capacity defense would nevertheless have left Mr. Anderson at risk of being confined for a very long time, subject to future determinations concerning his eligibility for release. See General Statutes § 17a-580 et seq. This prospect stood in contrast to the period of confinement under consideration by the state in plea negotiations, as little as eighteen months at one point. Attorney Ovian discussed this strategic consideration with Mr. Anderson, in addition to the merits of a lack of capacity defense.
Dr. Meisler’s testimony in this case establishes, to the court’s satisfaction, that a plausible defense of lack of capacity could have been developed and pursued by Attorney Ovian. Given the serious and persistent mental health issues exhibited by Mr. Anderson, and the correlation between those issues and his violent behavior, it was something to consider and the court finds Attorney Ovian took the initial steps to look into that defense. Having done so, it was incumbent upon him to obtain a complete mental health history and to obtain a thoroughly informed expert opinion on how Mr. Anderson’s mental health issues might impact his defense. Having recognized that responsibility, Attorney Ovian did not carry it out completely. He delegated the task of obtaining the complete history and did not ensure that task had been properly completed. He recognized the need to consult with an expert early on in the case, but did not do so until the time of jury selection. To the extent that his performance is subject to criticism, these are the principal considerations.
The petitioner cites Copas v. Commissioner of Correction, 234 Conn. 139, 662 A.2d 718 (1995) in support of his claim that Attorney Ovian’s investigation was deficient and deprived him of the effective assistance of counsel. The respondent cites Santiago v. Commissioner of Correction, 90 Conn.App. 420, 876 A.2d 1277 (2005) in support of the proposition that Attorney Ovian’s representation was sufficient. Copas is not directly applicable because the effectiveness of counsel was not an issue before the court; rather the court considered whether the petitioner was prejudiced by a concededly inadequate investigation. The Santiago case is factually distinguishable because there is no indication that defense counsel either failed to obtain a complete mental health history or waited until jury selection to seek an expert opinion. Ramos v. Commissioner of Correction, 172 Conn.App. 707, 159 A.3d 1174 (2017) is a case more factually analogous to this one than either Copas or Santiago .
In Ramos, the petitioner pleaded guilty to three counts of robbery in the first degree, one count of felony murder and one count of attempted robbery. These charges exposed him to a total of 140 years in prison. Pursuant to the plea agreement, however, his exposure was capped at fifty years, with a right to argue for a lesser sentence. He was ultimately sentenced to fifty years. At the outset of the case, the petitioner discussed his mental health issues with Attorney Karen Goodrow who was appointed to represent him. He described his experience with depression, auditory hallucinations and attempted suicide. He also related a serious history of substance abuse, including the use of heroin and "illy," marijuana dipped in PCP or embalming fluid, in the month during which he committed the crimes with which he was charged. Attorney Goodrow requested his medical records from the Department of Correction ("DOC") and, upon receipt, forwarded them to Dr. Peter Zelman, a forensic psychiatrist. The records obtained from DOC, however, belonged to another inmate with the same name but with far fewer psychiatric issues and a much less severe drug history than the petitioner. This error was not discovered by Attorney Goodrow during her representation of the petitioner. The habeas petition alleged Attorney Goodrow rendered ineffective assistance based on her failure to ensure that the records relied upon by Dr. Zelman were accurate. The court agreed that counsel had fallen short of her responsibilities because she had "assumed an obligation to conduct her investigation in a constitutionally adequate manner, which required her to obtain and furnish accurate medical information to the expert with whom she consulted ... so that the expert’s opinion would be well-grounded and she could appropriately rely upon it in developing her case strategy and advising her client whether to go to trial." Id., 300-01.
Like Attorney Goodrow, Attorney Ovian erred by not ensuring that his office had obtained a complete set of Mr. Anderson’s mental health records. It was not his intention to do anything less than that and he relied on his staff to complete that task, but still it remained his responsibility. The fact that Dr. Selig was not consulted until the time of jury selection is also problematic, although there is no evidence to support a conclusion that consulting him sooner would have made any difference. Attorney Ovian himself displayed some frustration with the fact that the referral had not been authorized and accomplished much sooner in the case.
The court’s analysis of Attorney Ovian’s performance is complicated by the fact that there was a substantial strategic consideration overlaying the incomplete investigation of a defense based on lack of capacity. Even if Attorney Ovian had determined that a lack of capacity defense was conceivable, it was also his view that pursuing that defense was not the wisest strategy, given the difference between Mr. Anderson’s exposure and the prison time being contemplated in plea negotiations. Attorney Ovian believed that Mr. Anderson’s mental health issues could be put to better use in attempting to negotiate a plea agreement that would limit the length of Mr. Anderson’s confinement and also create an opportunity to argue that Mr. Anderson should be confined at Whiting. That is the strategy he discussed with Mr. Anderson extensively and the one that ultimately played out at the time of the plea and sentencing. Mr. Anderson, however, also challenges Attorney Ovian’s performance in carrying out that strategy. Specifically, he claims Attorney Ovian failed to consult an expert and challenge the recommendations in the § 17a-566 report and he also failed to make proper use of the § 17a-566 report and the other mental health records at the sentencing hearing.
First, the court does not agree that Attorney Ovian’s pursuit of a mitigation strategy on the basis of Mr. Anderson’s mental health problems, rather than a lack of capacity defense, was deficient. This was a strategic decision, explained in detail to Mr. Anderson, which was not principally based upon the merits of a potential lack of capacity defense, but rather a strategy that Attorney Ovian believed was in Mr. Anderson’s overall best interests. "[T]o establish deficient performance by counsel, a defendant must show that, considering all of the circumstances, counsel’s representation fell below an objective standard of reasonableness as measured by prevailing professional norms ... Moreover, strategic decisions of counsel, although not entirely immune from review, are entitled to substantial deference by the court." (Citation omitted.) Skakel v. Commissioner of Correction, 329 Conn. 1, 31 (2018). While strategic decisions do not excuse inadequate investigations, "strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Id., 32 quoting Strickland v. Washington, supra, 466 U.S. 690-91. In this case, based on the totality of the circumstances, the court concludes that Attorney Ovian’s decision to pursue a mitigation strategy met the standard of objective reasonableness, even though he and Dr. Selig did not have a complete set of Mr. Anderson’s mental health records. They both did have access to Dr. Grayson’s 2000 evaluation, which Dr. Meisler himself characterized as "a thorough record review and evaluation," as well as Mr. Anderson’s extensive, more recent records from DOC. Whatever information the missing records might have added, the court concludes they would not have changed Attorney Ovian’s strategy, which was based upon his perception that it was not in Mr. Anderson’s best interests to pursue a lack of capacity defense. That was a strategic decision entitled to substantial deference. See Pladsen v. Commissioner of Correction, 96 Conn.App. 849, 902 A.2d 849 (2006) (same strategy pursued by Attorney Ovian was not ineffective assistance of counsel).
The court also concludes that Attorney Ovian’s performance in carrying out his strategy was not deficient. Specifically, the court disagrees with Mr. Anderson’s claim that Attorney Ovian should have again consulted an expert following the issuance of the § 17a-566 report and challenged the recommendations in that report, as well as his claim that Attorney Ovian failed to make proper use of the § 17a-566 report and the other mental health records at the sentencing hearing. Once again, Attorney Ovian himself would agree that a full set of Mr. Anderson’s mental health records should have been available to him and to Dr. Selig when evaluating the mental health issues in the case. This deficiency does not impact the § 17a-566 report because it is clear on the face of that report that the evaluators reviewed all of Mr. Anderson’s mental health records, except the 1982 report from Riverview School. Based on that comprehensive history, the evaluators reached the same conclusions that Dr. Selig had reached following his review of the records he did have, as well as his meeting with Mr. Anderson. Attorney Ovian testified that he saw no good reason to go back to Dr. Selig to evaluate a challenge to the report when Dr. Selig had already expressed an opinion that was consistent with what the report concluded. Moreover, Attorney Ovian considered it unwise to risk antagonizing the state by prolonging the proceedings to retain an expert and challenging the report he himself had requested. The state had already informally demonstrated a willingness to accept that mental health issues were a significant factor in the case that should be accounted for in sentencing. It was important to ensure that the state would not back away from that posture at the sentencing hearing. Indeed, the state did acknowledge Mr. Andersons difficulties with impulse control at the sentencing hearing.
Mr. Anderson also takes issue with the approach taken by Attorney Ovian at the sentencing hearing with respect to the mental health issues. The sentencing court, however, had the § 17a-566 report, substantial portions of which were incorporated into the presentence investigation report, and the court described its own direct experience with Mr. Anderson’s mental health challenges. Moreover, Attorney Ovian did focus a substantial portion of his sentencing argument on the mental health issues. Mr. Anderson’s claim appears to be that Attorney Ovian should have hit the details of the mental health history harder in his presentation to the court. Instead, Attorney Ovian attempted to coax the court into exercising its discretion to conduct a deeper exploration of the mental health issues, notwithstanding the conclusions of the § 17a-566 report. The fact that the court did not accept that suggestion does not mean it was objectively unreasonable for Attorney Ovian to take that approach. Attorney Ovian’s approach to the argument was a tactical decision that cannot be deemed deficient in hindsight. On the contrary, it was "within the wide range of reasonable professional assistance." Chace v. Bronson, 19 Conn.App. 674, 685-86, 564 A.2d 303, cert. denied, 213 Conn. 801, 567 A.2d 832 (1989) (rejecting habeas petitioner’s claim that trial counsel failed to emphasize sufficiently to the jury the evidence of intoxication).
In sum, while Attorney Ovian’s performance may be subject to some legitimate criticism relating to the failure to obtain a complete medical history and the last minute nature of his consultation with Dr. Selig, in the totality of the circumstances these shortcomings do not constitute "errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the [s]ixth [a]mendment." Skakel v. Commissioner of Correction, supra, 329 Conn. 30, quoting Strickland v. Washington, 466 U.S. 687.
III. Prejudice
Although the court has concluded that Mr. Anderson has not carried his burden on the performance prong of the Strickland test, the court also addresses the prejudice prong under Strickland on those aspects of Attorney Ovian’s performance that the court found were open to legitimate criticism. Mr. Anderson claims that Attorney Ovian’s alleged mistakes in connection with a lack of capacity defense render his guilty pleas involuntary, requiring that they be set aside and the case restored to the docket. Even if it is accepted that the legitimate criticisms of Attorney Ovian’s performance satisfy the first prong of the Strickland test with respect to this claim, however, Mr. Anderson still has the burden to prove that, "but for counsel’s allegedly deficient performance, the petitioner would have insisted upon a trial." Carraway v. Commissioner of Corrections, supra, 144 Conn.App. 471, citing Hill v. Lockhart, supra . The court concludes that Mr. Anderson has not carried that burden. Mr. Anderson also maintains that the lack of a complete mental health record at sentencing prejudiced him. To establish prejudice on this claim, Mr. Anderson must prove that the result of the sentencing hearing would have been different if the complete mental health records had been furnished. Breton v. Commissioner of Correction, supra, 325 Conn. 669.
The court first addresses Mr. Anderson’s claim that the deficiencies in Attorney Ovian’s investigation (the incomplete mental health record and the late consultation with Dr. Selig) caused Attorney Ovian to conclude, erroneously, that a lack of capacity defense was not viable and, had Mr. Anderson been told the defense was viable, he would have chosen to go to trial rather than plead guilty. The court’s analysis of this claim must follow the framework set forth in Ramos v. Commissioner of Correction, supra . In Ramos, where the petitioner’s trial counsel and expert had relied upon the wrong mental health records when evaluating the viability of a lack of capacity defense, the petitioner’s request that his conviction and sentence be vacated required that he "establish several necessary facts in order to demonstrate a reasonable probability that he would have insisted on going to trial had counsel properly advised him of the possible availability of the affirmative defense of mental disease or defect, based upon the proper advice from [the consulting expert] as to the viability of such defense." Ramos v. Commissioner of Correction, supra, 172 Conn.App. 303. The petitioner is required to prove; "first, that the affirmative defense of mental disease or defect was at least theoretically available to the petitioner based upon the facts of this case; second, that such affirmative defense was factually supported by at least some evidence available to the petitioner at trial; third, that the potential viability of that affirmative defense would have been established, in material part, by the contents of his [complete] medical records and/or [Dr. Selig’s] likely testimony based upon them; fourth, that the potential viability of that affirmative defense, as supported by the petitioner’s own medical records and [Dr. Selig’s] probable advice based upon it, would have been strong enough to require an attorney of ordinary skill and training in the criminal law to advise him of the potential costs and benefits of asserting that affirmative defense; and fifth, that had [Attorney Ovian] advised him of such potential costs and benefits, it is reasonably probable that he would have decided to go to trial." Id., 303-04.
Dr. Meisler’s testimony establishes to the court’s satisfaction that a lack of capacity defense was available and supported by some evidence. The similarity of the facts between the 2009 incident at issue here and the 2012 incident first evaluated by Dr. Meisler is sufficient to support Dr. Meisler’s assertion that he could extrapolate back to 2009 based on his review of the complete records and his 2013 evaluation of Mr. Anderson. The court also finds, based upon Mr. Anderson’s decision to pursue the option of a lack of capacity defense presented to him in 2013, that he probably would have chosen to pursue that defense in 2011 as well. The court does not find, however, that Mr. Anderson has proven Dr. Selig’s opinion would have been different had he been consulted earlier and given the complete medical records. Without Dr. Selig’s testimony in this case, the court can only speculate as to whether the complete records would have caused him to reach a different conclusion than the one he relayed to Attorney Ovian. This is particularly so because the record establishes that Dr. Selig did have access to Dr. Grayson’s 2000 evaluation, which Dr. Meisler acknowledges was "a thorough record review and evaluation." The only diagnosis Dr. Meisler adds to those identified by Dr. Grayson is his diagnosis of Complex PTSD, a diagnosis that is not formally recognized by DSM-5. Mr. Anderson’s long history of impulse control problems related to diagnosed personality disorders, PTSD and borderline intellectual capacity were also presented to Dr. Selig and he came to a different conclusion than Dr. Meisler did. Consequently, the court finds that Mr. Anderson was not prejudiced by Attorney Ovian’s failure to obtain Mr. Anderson’s complete medical history and present it to Dr. Selig earlier in the case in connection with a lack of capacity defense.
The court does not question Dr. Meisler’s explanation of this diagnosis, but has no idea what Dr. Selig’s view is on the subject or what impact it would have on his conclusions.
The court also finds that the lack of a complete set of mental health records in Attorney Ovian’s file did not prejudice Mr. Anderson at his sentencing hearing. This is particularly so because the evaluators who authored the § 17a-566 report did have access to the complete medical record and presented an exhaustive history in their report, which was given to the court. That report, which detailed the entirety of Mr. Anderson’s history of mental health issues and assaultive behavior, was placed before the sentencing court and substantially referenced by Attorney Ovian at the sentencing hearing. The transcript of the sentencing hearing reflects that the sentencing court took the mental health considerations into account. Consequently, Mr. Anderson has not proven that the result of the sentencing hearing would have been different if a complete set of records had been obtained by Attorney Ovian.
CONCLUSION
The court concludes that the petitioner has failed to sustain his burden to prove that his defense counsel rendered ineffective assistance of counsel. The court, therefore, denies the petition and renders judgment in favor of the respondent.