Opinion
No. CV-99-421776
February 7, 2005
MEMORANDUM OF DECISION
The petitioner has filed an amended three-count petition for a writ of habeas corpus.
Based on the evidence presented to this court and the claims of law by both counsel, this court makes the following findings.
Prior to the presentation of the first witness at the jury trial, Attorney Ginocchio represented petitioner through jury selection and was prepared for trial.
On the morning scheduled for the presentation of the first witness, which was eleven days after jury selection had been completed, petitioner told Attorney Ginocchio for the first time that he wanted to represent himself. The court granted petitioner's request and appointed Attorney Ginocchio as standby counsel; the court also denied petitioner's request for a continuance.
At trial, petitioner represented himself with assistance of standby counsel.
Following a jury trial, petitioner was convicted of assault in the second degree with a motor vehicle in violation of General Statutes § 53a-60d and operating a motor vehicle which while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. On May 29, 1997, petitioner was sentenced to five years incarceration, execution suspended after thirty months, together with three years probation. Said verdict and judgment were affirmed. State v. Copp, 54 Conn.App. 695; September 7, 1999.
The facts the jury could have reasonably found in support of the conviction of the petitioner are set forth in the Appellate Court's decision. State v. Copp, 54 Conn.App. 695, 696.
Petitioner's petition for certification for appeal was denied. State v. Copp, 252 Conn. 901; December 7, 1999.
On January 8, 1999, petitioner filed a petition for writ of habeas corpus.
On April 13, 2004, petitioner, by counsel, filed an amended petition with four counts.
On August 16, 2004, summary judgment on the third count was rendered for the respondent.
On November 5, 2004, the first day of the hearing on the three remaining counts of the amended petition, petitioner withdrew the fourth count.
Presently before the court are counts one and two of the amended petition.
Count one of petitioner's Amended Petition alleges, with respect to the acts and omissions of Attorney Ginocchio prior to Attorney Ginocchio's being appointed stand-by counsel, that:
11. Atty. Ginocchio did not prepare adequately for trial, including locating the present addresses of defense witnesses and ensuring the service of subpoenas for both witnesses and exculpatory documentary and medical evidence.
12. Atty. Ginocchio did not prepare to present favorable and available information in support of the petitioner's defense.
13. Atty. Ginocchio did not prepare to present available information to impeach prosecution witnesses.
14. Atty. Ginocchio did not conduct an adequate investigation into the prosecution witnesses and their anticipated testimony.
15. Atty. Ginocchio did not adequately obtain information from the prosecuting attorney either through seeking a ruling on the discovery motion or via reviewing the prosecution file(s) in accordance with an open file policy.
16. Atty. Ginocchio did not prepare and pursue any Motion to Suppress, based on Miranda v. US and/or other relevant law, potentially inculpatory and damaging statements made while defendant was receiving emergency medical treatment, though he had reason to kmow that the State would offer such statements in their case in chief.
17. Atty. Ginocchio did not adequately employ the information available to the defense I preparing and presenting the Petitioner's case and in preparing to defend against the prosecution's claims.
18. Atty. Ginocchio did not adequately prepare to present evidence supporting the petitioner's alternate driver defense.
19. Atty. Ginocchio's acts and omissions fell below the standard of reasonable competence in the criminal law.
20. But for Atty. Ginocchio's errors and omissions as described above it is reasonably probably that the result of the trial court proceedings would have been different.
In order to prevail on his claim of ineffective assistance of counsel as alleged, petitioner must prove by a fair preponderance of the evidence "both that his counsel's performance was deficient and that there is a reasonable probability that, but for the counsel's mistakes, the result of the proceeding would have been different." Guadalupe v. Commissioner of Corrections, 83 Conn.App. 280, 282; Strickland v. Washington, 466 U.S. 668, 694.
Petitioner has failed to prove either of these two Strickland elements.
Petitioner has failed to present any evidence as to what information any further investigation would have produced, the names of witnesses who should have been called and interviewed, what information they would have provided, the testimony of those witnesses before this court, and the factual basis to support a motion to suppress. Holley v. Commissioner of Correction, 62 Conn.App. 170, 175 (2001); State v. Talton, 197 Conn. 280 (1985); Aillon v. Meachum, 211 Conn. 352, 363, 368 (1989).
Based on the evidence presented, Attorney Ginocchio, with the aid of his investigator, did investigate the scene, did review the information and evidence obtained by the State, and did interview the bartender. Petitioner failed to provide Attorney Ginocchio with names of any witnesses including the woman he claims was the driver of his car.
Accordingly, judgment is entered for the respondent under the first count.
Under Count Two of the Amended Petition, petitioner alleges that his conviction is unlawful because the judgment of conviction and court order committing him to the custody of the respondent rested upon the deprivation of his constitutional right to the effective assistance of counsel under the Sixth and Fourteenth Amendments to the United States Constitution and Article First, Section Eight of the Connecticut Constitution. As the basis for this claim petitioner alleges that there were "in-chambers meetings" with the trial judge by petitioner's counsel and the Assistant State's Attorney, Richard Colangeto, prior to petitioner's discharge of his attorney, regarding appointment of new trial counsel for the petitioner and continuance of the trial; and that such meetings were held without petitioner being present and without records of those meetings.
Based upon the evidence presented, the court finds that there were no such meetings. Accordingly, judgment is entered for the respondent on count two.
Ronald J. Fracasse, J.T.R.